T 
1813 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


P7 


W- 


i     .'    i.    W.  v.*,— 


^it/»'KM&s...   :,.-r-'^.^   ^:f^:'^jiM^iisiM^&t^i^^^ 


A    TEE ATI  SE 


ON  THE  LAW  OP 


JUDICIAL  AND  EXECUTION 


SALES. 


By   DAYID    KOEEE. 

OF  TUB  lO-WA  BAB. 


CHICAGO : 

CALLAGIIAN   AND    COMrANY. 
1S73. 


Entered  according  to  Act  of  Congress,  in  the  year  1873,  by 

DAVID  RORER, 
In  the  Office  of  the  Lil)rarian  of  Congress,  at  Washington. 

T 


■5 

<4 


u. 


D  c  b  i  c  a  t  i  0  ri 


Hon.  SAMUEL  F.  MILLEK,  LL.  D., 

ASSOCIATE    .TlTSTICr, 
or  THE 

supui:mt:  (.ouht  of  tuk  united  states, 

AS   AN   EXriiESSION" 

OP  THAT   KESrECX  AND   UEOAKD  WUICU  AKE   SO  EMINENTLY  DUE  TO   lUS 

GKEAT  PERSONAL  ■W'Or.Tn  AND  LEGAL  LEAKMN", 

THIS    VOI-TJME   IS   DECIfATEJ), 

r.T 

THE  AUTIIOll. 


735902 


PREFACE. 


Pkriiai'S  few  brandies  of  tlic  law  arc  ot  more  interest 
to  the  public  than  those  of  Judicial,  and  of  Execution, 
Sales  ;   more  especially  of  real  property. 

The  policy  of  these  States,  unlike  that  of  Enghiud,  has 
evcr}^'herc  encouraged  the  distribution  of  landed  property, 
not  only  by  rendering  it  liable  to  change  of  ownership  in 
fee,  by  ordinary  bargain  and  sale,  but  also  by  sales  on 
writs  of  execution,  and  on  decrees  of  the  courts.  Hence, 
much  of  the  landed  wealtli  of  the  country  is  held  or 
claimed  under  titles  and  sales  made  by  coercion  of  law. 

It  is  witli  the  hope  that  tliis  first  cfibrt  to  bring  these 
subjects  into  a  system,  may  in  some  degree  lighten  the 
labors  of  his  professional  brethren,  and  aid  them  in  that 
con-ect  administration  of  justice  which  is  the  true  object 
of  all  courts  and  lawyers,  that  this  Yolume,  which  was 
originally  begun  for  the  author's  o^\^l  convenient  use,  is 
brought  before  the  public. 

A  desire  to  compass  tlie  several  subjects  in  as  few  words 
as  practicable,  and  thereby  save  the  labor  of  tedious  re- 
search, has  diminished  the  size  of  the  work  at  tlie  cost,  in 
reality,  of  more  care  and  labor  than  would  have  been 
otlicrwise  requiretl. 

If    it    shall    meet    from    courts    and    lawyers    a    favorable 


VI  r  K  E  F  A  C  K  . 

reception,  the    labors  of    tlic    autlior  wUl    thcrcLv  l»e    moit; 
than  repaid. 

The  author  desires,  in  conchision,  to  exjiress  his  great 
obligation  to  the  Editor,  J.  A.  L.  WurrriER,  Esq.,  of  the 
Chicago  Bar,  lor  the  careful  and  able  manner  in  which  he 
has  revised  it  fov    and  seen  it  through,  the  press. 

David   Koker. 

BuKr.ixGTON,  Iowa,  1S73. 


CONTENTS. 


TAET    FIEST. 

TIIK   XATUKK   OF   JUDICIAL    AND    OF    EXECUTION    SAXES. 

CHAPTER    I. 

THE   NATURE   OF  JUDICIAL   SALES. 

TACK. 

I.  Of  Judicial  Sales  in  General 3 

II.    Judicial  Sales  in  Proceedings,  purely  «;i,  rem 17 

III.    Judicial  Sales  in  Proceedings,  partly  in  rem  and  partly  inper- 

sonmn — - - *-i 

CHAPTER    II. 

THE   N.VTURE   OF   EXFXUTION   SALES. 

T.    They  are  Ministerial  Sales - - 2.") 

II.  The  Officer  Selling  is,  in  law,  the  Attorney  of  the  Execution 

Debtor 28 

III.  There  is  no  Warranty.    T\\g  x\\\(i  caveat  emptor  ii])])\ics 29 

IV.  They  arc  within  the  Statute  of  Frauds "'0 

V.    Ellect  of  Subsequent  Reversal  of  Judgments  or  Quashing  the 

Execution SI 

PART    SECOND. 

JUDICIAL    SALES    OF    EEAL    rKOPEUTY. 

CHAPTER   III. 

JUUISDICTIOX   OF  THE   COURT   ORDERIXG  THE   SALE. 

T.    The  Jurisdiction  is  Local "•' 

II.  Jurisdiction  is  Power  to  Hear  and  Determine 3:5 

III.  There  must  be  Jurisdiction  of  the  Subject  Matter  and  of  the 

Particular  Case r,r. 

IV.  Title  Passes  by  Operation  of  Law 4.2 


vui  coN'n:NTS. 

CHAPTER    IV. 

THE   SALK. 

TAGE. 

I.  IJy  Avhom  to  be  Mude 44 

II.  How  to  be  Made -    4.") 

III.  Who  may  not  Buy - 50 

IV.  Koticc  of  Sale:  Adjournment ---  5'2 

V.  Confirmation •''•'' 

Vr.  When  Title  Passes S-' 

VII.  When  not  Aided  in  Equity  ..- - ^'-^ 

VIII.  KotAllectcd  by  Reversal  of  Decree GO 

IX.  How  AUectcd  by  Limitation - G2 

X.  How  Aflected  by  Statute  of  Frauds - C;J 

XL  When  Valid  by  Lapse  of  Time 01 

XII.  How  Enforced  against  the  Purchaser GO 

XIII.  How  Carried  into  Effect  in  fiivor  of  the  Purcliascr C7 

XIV.  Ratification  by  the  Party  Affected GS 

CHAPTER    V. 

JUDICIAL   SALES   TO    EXi'OKCE   LIENS   ON    KKAL   I'KOriCKTV. 

I.    Municipal  Liens  for  Street  Improvements TO 

II.  Mechanic's  Liens T.j 

III.  IMortgagc  Liens T8 

IV.  Vendor's  Liens >' 

CHAPTER    A'l. 

SALE   OF  LANDS   IX   PKOBATE   FOK   PAYMENT   OF  DEBTS. 

I.  AV'hat  Lands  may  be  Sold - 01 

1  r.    What  Debts  Lands  may  be  Sold  to  Pay O-""* 

III.  Who  may  Conduct  the  Sale '•^T 

IV.  Application  to  Sell— how  and  when  to  be  made 98 

Y.    Within  what  Time  Sale  to  be  Made  and  Perfected  by  Deed...  119 

\l.     Not  after  repeal  of  the  Law  or  abolition  of  the  Court  allowing 

the  Order 1-*^ 

VII.     Of  the  Oath  of  the  Person  selling --  121 

VIII.  Sales  merely  Irregular,  or  in  Irregular  Proceedings,  not  void.  122 
IX.    Confirmation— the  Deed— its  Approval 12o 

CHAPTER    VII. 

GUAllDIAN'S   SALES    AND   SALES    IN    rHOCEEDINCJS    LOU    rAKTITION. 

I.    Guardian's  Sales - 1-4 

II.  Sales  in  Proceedings  for  Partition !"'> 


CONTENTS.  IX 

CHAPTER    VIII. 

PAOE. 
rURCIIASF.S   Ijy  I'EKSOKS  COXCEKXED   I\   SEI.LIXG loi 

CIIArTEK    IX. 

THE   DEED. 

I.  By  Whom  to  be  Maile... ^^^ 

II.  To  Whom  to  be  Made. I'!'* 

III.  Wlien  to  be  Made - - I'tJJ 

IV.  Its  Kecitals  and  Descriptions -  I'l'*' 

V.  Wliat  Passes  by  it - -  I'lS 

CHAPTER    X. 

SETTING  ASIDE   SA].E. 

I.  Tlic  Power  to  set  aside  Sales 152 

II.  For  Inadequacy  of  Price - l^i 

III.  For  Irregularity 150 

IV.  For  ]\Iistalce  and  Misapprehension -  -  l^S 

V.    For  Surprise l-''^^ 

VI.    For  Fraud - - l-'iO 

VII.    For  Reversal  of  the  Decree  of  Sale 101 

VIII.    Re-Salc - -  1^>1 

CHAPTER    XI. 

i:stoi'im:i.  —  waukaxty^- caveat  ENirTOu. 

I.    Estoppel -- •■  IG-i 

II.  AVarranty --- IC" 

III.  Caveat  Emptor --- - 1G8 

CHAPTER   XII. 

COLI.ATEIIAI.  IMrEACIIMEXTS  —  VOID  JUDICIAE  SALES  —  llETUUX   OF 
rURCHASE  MOXEY. 

I.    When  Impeachable  Collaterally - -  -  -  1  ~0 

n.    When  not  Impeachable  Collaterally 1'<'0 

HI.    Void  Judicial  Sales.. 1"-^ 

IV.     Return  of  Purchase  i\Ioncy l^"? 

TAET    TIIIED. 

JUDICIAL   S.U.r.S    OF    I'ERSOKAL   TROrEKlT COErORATI-:   FRAN- 
CHISES  rROrEKlT   AND    STOCKS. 


S  COJ^TENTS. 

CHAPTER   XIII. 

JUDICIAL  BALES   OF  TERSONAL  rKOrEUTY. 

TAGB. 

I.     lu  Admiralty 179 

II.    At  Law 183 

CHAPTER   Xiy. 

JUDICIAL  SAT.KS   OF  CORPORATE   FRAXCHISES,   PROPERTY  A'SD  STOCKS.    187 

PAET    FOURTH. 

EXECUTION    SALES    OF    KEAL   TKOrEKTY. 

CHAPTER   XV. 

■\VUAT  I>-TEREST  IX  LANDS  MAY  RE   SOLD,   AND   IN    WHAT   ORDER. 

I.     IIow  Liable  to  Sale 105 

II.  Dower  Lands-, 199 

III.  Undivided  Interests -  -  - 199 

IV.  Equitable  Interests -- .- 200 

V.  The  Homestead - 201 

VI.  On  Avliat  Order  Sale  to  be  made 20,"i 

CHAPTER   XVI. 

THE   WRIT — THE   LEVY  —  AND    NOTFCE    OK   SALE. 

I.    The  Writ  of  Execution 20S 

IL    The  Levy 210 

IIL    The  Notice  of  Sale  and  Return 213 

CHAPTER    XVII. 

TUE   SALE. 

I.    By  Whom  to  be  Made 2ir. 

IL    How  to  be  Made 217 

III.  Who  may  not  Buy 227 

IV.  Sales  Irregular,  or  under  Irregular  Process  or  Judgments 227 

V.    Bales  made  after  Death  of  Execution  Defendant 235 

VI.  Sales  when  there  is  a  Valuation  Law 240 

VII.  Sales  at  which  the  Execution  Creditor  is  Purchaser 240 

VIII.    Sales  made  after  licturu  Day  of  the  Execution. 248 

IX.    Sales  to  Third  Persons,  bona  fide  purchasers 249 

X.     Void  Execution  Sales 249 


CONTIINTS.  XI 

CHAPTER   XVIII. 

THE  DEKI). 

PAGE. 

r.  By  Wliom  to  be  Made... 261 

II.  To  Whom  to  be  Made 2G1 

III.  When  to  be  Made - SG."* 

IV.  What  Passes  by  it.... 2G0 

V.  Its  Recitals - 275 

VI.  Its  Relation - --  270 

VII.  Priority 277 

VIII.  Registration 283 

IX.  Collateral  Impeachment - 284 

X.  How  Far  Execution  Defendant  is  Estopped  by  the  Deed 287 

CHAPTER    XIX. 

SETTIXG  SALE   .A.SIDE. 

I.  Power  of  the  Court  to  set  Sale  Aside 289 

II.  For  Inadequacy  of  Price - 290 

III.  For  Misconduct  in  Selling 293 

IV.  For  M  istake,  Irregularity,  and  Fraud 298 

V.  For  Reversal  of  the  Judgment 301 

VI.    Return  of  the  Purchase  Money 302 

CHAPTER   XX. 

REDEMPTION. 

I.  The  Right  of  Redemption 304 

II.  By  the  Execution  Debtor oOG 

III.  By  Judgment  Creditors 308 

IV.  By  Mortgage  Creditors 309 

V.  How  and  When  to  be  Redeemed 311 

VI.    Eflectof  Redemption 314 

PAET    FIFTH. 

EXKCCTIOX   SALES   OF   PERSOXAL   morERTY. 
CHAPTER    XXI. 

THE  WRIT. 

T.    The  Writ ----  317 

II.    Its  Lien - 310 

(II.    AVhatmaybe  Sold 322 


XU  CONTENTS. 

CHAPTER   XXII. 

THE   LEW. 

PAGE. 

I.  "When  to  be  Made 328 

II.  How  to  be  Made 329 

III.  ItsEtlect 831 

IV.  When  Void,  or  Discharged 331 

V.  When  it  will  be  Set  Aside 332 

VI.     Constructive  Levy 332 

CHAPTER   XXIII. 

THE   SALE. 

I.  By  Whom  to  be  Made 333 

II.  How  to  be  Made 33.j 

III.  ItsEfTect:  What  Passes  by  it 338 

IV.  Void,  and  Voidable  Sales 341 

V.  Who  may  not  Buy 341 

VI.    Wlien  the  Officer  may  Rc-scll 343 

CHAPTER   XXIV. 

KXECCTIOX    S.VLES     OF    COlVrORATE     FKAXCHISES,  rKOI'EliTY  AND    STOCK.S. 

I.    At  Common  Law 344 

II.    By  Statute 347 

IIL    Effect  of  Sale.... 351 

PART    SIXTH. 

ExiQirrrox  fkom  salk — ArPLiavTioN  of  tkoceeds. 

CHAPTER   XXV. 

EXEjrrTIOX  PROM   SALE. 

I.    The  Policy  of  the  Law 353 

K.     Its  Legal  Effect 354 

in.    Waiver  Thereof 3G3 

CHAPTER    XXVI. 

Arrr.TCATiox  of  the  i'uoceed3 370 


INDEX  TO  CASES  CITED. 


A. 

PAOE. 

Abbe  V.  Ward  31,  208,  24!) 

Al)bcrcronibe  v.  Hall  287 

Abbott  V.  Slieplierd  250 

Abby  V.  Dewey  293 

AbdUl  V.  Abdi'll  118 

Adams  v.  Cowherd  89 

V.  Dyer  211,  281 

r.  Jeflrics      41,104,106,110 

V.  Riser  217,  219,  254 

V.  Smith  303 

Addison  v.  Crow  219 

Adlum  V.  Yard  ICG 

Agricultural  Bank  v.  Burr  348 

V.  Wilson       348 

Aiken  v.  Brucn  205 

Alabama  Conference  v.  Price 

85,  3G,  lOa 
Alexander  v.  Maverick  102 

V.  Nelson  37,  171 

Allen  V.  Allen  125' 

V.  Gault  15,  21,  130,  149 

«.  McCalla  329 

V.  Parish  227,  228 

i).  Phunmer  374i 

V.  Saunders  200 

Amant  v.  Alexandria  and  Pitts- 
burgh   Transportation  Com- 
pany 187,  344 
Ambler  v.  Warwick  183 
Am.  Ins.  Co.  v.  Oakley 

48,  154,  155,  158,  159,  161,  290 
Amherst  v.  The  Montour  Iron 

Co.  189 

Amis  V.  Smith  25,  245,  3G1,  3G2 

Anderson  v.  Brown  2G1 

v.  Clark  227,  285 

i;.  Foulk        158,  159,  l')8 

Andrews  v.  Scotten  4,  9,  10,  57 

Ainsworth  v.  Greenlee  335 

Anson  v.  Anson  309,  310 

Anthony  x.  Wessell        2G2,  264,  268 

Applegate  v.  Russell 

Aimant  v.  Turnpike  R.  Co.  346 

Armors.  Cochrane  7,  135,  183 

Armstrong  v.  Jackson   227,  234,  285 

V.  McCoy  275 

V.  Sledge  373 


PAGE. 

Arnold  v.  Fuller  328,  331 

V.  Ru-gles  348 

V.  Smith  13,  26,  63 

Asliby  V.  Abney  284 

V.  Cowcll  154 

Astor  V.  Miller  87 

Atkins  V.  Kinnon  148 

Atkinson  v.  M.  &  C.  R.  R.  Co. 

187,  188,  344 
Attorney  General  v.  Day  63 

Austin  V.  Tilden  339 

Avant  V.  Reed  29 

Averill  v.  Wilson  235 

Aymar  v.  RofY  125 

Ayres  v.  Baumgarten 

4,  15,  55,''56,  116,  141,  143,  153 


B. 


Babbit  v.  Doe 

42,  101,  103,  117,  122,  17G,  242 

Bacon  v.  Conn.  153 

Bagliy  V.  Reeves  371 

Bailey  v.  Greenlcaf  87 

Bains  v.  Morris  146 

Buird  V.  Corwin  130 

Baker  v.  Bradsby  123,  143,  144 

V.  Kingsland  95 

V.  Lorillard  126 

Baldwin  v.  Hale  106 

Ball  V.  Sliell  208 

Baihmce  v.  Loomis        223,  294,  300 

Bancroft  v.  Andrews  03 

Bank  v.  Johnson  41 

of  Alexandria  v.  Taylor 

154,  155 
of  Hamilton  t\  Dudley 

42,  43,  120,  121,  174 
of  Missouri  ».  Wells  232 

of  St.  Mary  «.  St.  John       351 
of  Tennessee  t).  Beatv         251 
of  U.  S.  V.  Bank  of  Wash- 
ington 30 
'0.  Planters'  Bank  34!» 
V.  Tvler                    276 
V.  Winston      202,  356 
of  Vertrennes  v.  Warren     312 
Banker  v.  Caldwell                325,  326 


XIV 


IXDEX   TO    CASES    CITED. 


Banks  c.  Ammon 
•».  Bales 
V.  Evans 
Barber  v  Harris 
Barker  v.  Rollins 
Barklcy  v.  Screven 
Barnard  v.  Stevens 
Barnes  v.  Hayncs 
Barney  v.  j\IcCarfy 
t\  INIyers 
1).  Patterson 
Barrin,2jer  ■».  Burke 


TACTS. 

KiO 
224 

yio 

273 

357 

285 

210,  248 

320 

321 

83,  205,  20G 

30,  248 

313 


Barrintrton  r.  Alexander       134,  137 

Barron^t'.  ^Vest  180 

Base  V.  Abell  134 
Bates  T.  Kuddick      83,  205,  200,  309 

V.  Secley  200 

Bay  7).  Gllleland  293 

Baxter  ■».  Brad))nry  104 
Beaureffard  v.  !Ne^v  Orleans 

10,  17,  33,  37,  38,  39,  52,  G5,  04, 

100,  102,  104,  127,  179,  180 

Beekman  v.  Lansing  329 

Beelert;.  Bnllett  235 

Beers  i\  Ilangliton  3G1 

Beeson  v.  Beeson  51,  138 

Bell  V.  Brown  81 

T.  Evans  279 

Belmont  v.  Cowan  SO 

Benedict  ■».  Burn  el  355 

V.  ButterfielJ  51 

V.  Oilman  310 

Bennett «.  Duvcrgis  198 

«.  OAvens  174 

Benningfield  v.  Eccd  174 

Benson  v.  Cilley  39,  104 

Benton  v.  AVoocl  225 

Benz  t\  nines  57,  293 

Bergin  v.  McFarland 

91,  97,  103,  149,  195 

Bernal  v.  Gliem  200 

Berry  v.  Grilletli  •  218 

V.  Kelly  325 

Bethel  v.  Bethel  49 

V.  Sharp  291,  293 

Bettisen  v.  Budd  275 

Bevan  d.  Ilayden  350 

Bickley  v.  Blddle  109 

Bii^'clow  ».  Wilson  311 
Bi-rley  v.  Risher       45,  219,  330,  343 

Billington  i\  Forbs  159,  103 
Bingham  v.  Maxey  107, 108, 109,  177 

Binns  v.  Williams  301 

Birdenbecker  v.  Lowell  372 

liirdseye  v.  Kay  324,  340 

Bisby  V.  Hall  190 

Bishop  V.  Hampton  175,  170 

Bizzle  V.  Hardaway  374 


r.\nK. 

Black  V.  Brennan  183,  180 

■B.  Meek  110 

Blackmore  v.  Barker  00 

Blair  v.  Marsh                   89,  271,  338 

Blain  v.  Stewart  201 

Blake  v.  Davis  33 

Blakely  v.  Abert  44,  47 

Blanchard  v.  Dedham  349 

Blane  v.  Carter  61 

Blanton  v.  IVLarrow  833 

Bleeker  v.  Bond  240 

Blight?:.  Tobin  290 

Bliss  V.  Clark  201,  202,  203,  204,  205 

V.  Wilson  117,  177 

Blood  1).  Hayman  138,  157 

Bloom  V.  Burdick  41,  42 
Blossom  ■».  R.  R.  Co. 

4,  44,  49,  53,  50,  141,  143,  145 

Blount  ®.  Davis  204 

Blyer  v.  Mulholland  80 

BcSfils  v.  Fisher  15,  19 

Bohart  ■».  Atkinson  107 
Boston,   Concord    &   Montreal 

R.  11.  Co.  V.  Gilmorc  346 

Bond  V.  Smith  95 

Bondurant  v.  Ov/ens  271 

Boraseu  «.  Wells  100 

Borden  v.  The  State  39,  104 

Bostwitch  V.  Atkins  05 

Boswell  V.  Sharji  37,  174 

Bosworth  V.  Farcuholtz  209 

Bozza  V.  Rowe  7,  G4,  183 

Bracket  v.  The  Hercules  181 

Bradbury  v.  Reed  123 

Bradtord  v.  Limpus  293 
Bradley  v.  R.  R.  Co. 

78,  79,  80,  189, 190 

V.  O'Donnell  270 

V.  Snyder  3 

Bradstreet  v.  Ins.  Co.  180,  1«4 

Brastield  v.  Whilaker  211,  321 

Brasher  v.  Cortland  GO 

Breckenridgc  v.  Dawson  107,  108 

V.  Holland  137 

Brinkerhoff  v.  Thalhimcr  87 

Bright  v.  Boyd  60 

Briscoe  v.  York  307 

Britton  v.  Johnson  134 
Brobst  V.  Brock                  83,  84,  151 

Brodixman  v.  Wilcut  354 

Brogiiill  V.  Lash  _  255 
Bronson  v.  Kenzie 

80,  83,  221,  304,  338,  354 

Brooks  V.  Ratcliff  205 

V.  Rooney  213,  22D 

Brown  v.  Bedwiue  148 

V.  Edsou  33 

v.  Foster  94 


INDKX    TO    CASES   CITIO). 


XV 


Erowu  V.  Frost 

V.  Gilinor 

V.  Kirkman 

V.  La  110 

V.  McKiij-  2o(j, 

V.  Ec'dvvyne 

■V.  Parker 

V.  Stewart 

V.  Wyncoop 
Browne  v.  Smiley 
Brownson  v.  Hull 
Bruce  v.  Vogle 
Brush  V.  Ware 
Bryan  v.  Manning: 
Buchanan  v.  'J'lacy 
Buck  V.  Colbatli 
Bullitt  V.  Winston 
Bunker  ?;.  Rand 
Burton  v.  Emerson  228, 240, 
Bunts  V.  Cole 

Burk  V.  Bank  of  Tennessee 
Burr  V.  Beers 
Burroughs  v.  Wright 
Burton  v.  Emerson 
Bush  V.  Cooper 

V.  J^Iarshall 
Bussey  v.  Hardin  11 

Buchtcr  V.  Dew  7o, 

Butler  V.  Emmet 

V.  Haynes    209,  210, 
Butterfield  v.  AValsh 

228,  2o0,  240,  241,  247, 
Bowdoin  v.  Jordan 
Bowen  v.  Bel! 
Boyee  v.  Smith 
Boj-d  V.  Ellis 

V.  Longworth 
Bouuton  y.  Winslow 
Bouton  V.  Lord 
Bouts  V.  Cole 

C. 


PAGE. 

157,  IGl 

158 

85 

329 

250,  297 
52,  53 

237,  239 
87 
75 
304 
200 
281 
138 

128,  148 
275 
3G1 
329 
222 

241,  285 
200 
200 
80 
330 
338 

104,  105 
100 

,  55,  100 

370,  374 
08 

237  239 

249,  278 
210 

228,  284 
325 

290,  293 

29 

278 

211 

291 


Carlisle  v.  Carlisle 
Carnan  v.  Turner 
Carpenter  v.  Doe 
Carr  v.  Hunt 

v.  Wallace 
Carter  v.  Read 

V.  Spencer 
V.  Walker 


TAfJE. 

219,  294 
95,  96 

228,  233 

201,  294 
164 
250 
205 

148,  149 


t).  Wauffh  35,  30,  102,111,110 

Cartney  v.  Reed  328,  331 

Carver  v.  Jackson  104 

C/'arwick  v.  Myers  335 

Cary  v.  Bright  329 

Case  V.  Denmorc  304 

Cass  V.  Littleton  331 

Cassamajor  v.  Stodc  153 

Cassilly  v.  Rhodes  132,  150,  207 

Catherwood  v.  Gapcte  245,  301 

Catlin  V.  Jackson  229,  268 

Cattell  V.  Gilbert  293,  294 

Caullman  v.  Sayrc  48 
Caveuder  v.  Smith 

190,  198,  201,  227,  235 


no 


Cawthorn  v.  ]\IcCraw 
Cazet  V.  Hubble 
Chadbouruc  v.  Mason 

V.  Radcliff 
Chamberlain  v.  Lyle 
Chambers  v.  Thomas     210, 
Chapman  v.  Harnood 
Charless  v.  Lamberson 
Cheatham  «.  Brien 
Cherry  ®.  Woodlard 
Cliesapeake    Bank    v.   McClel 

land 
Chick  V.  Willetts 
Ciiild  ®.  Hurst 
Chiklers  v.  Hart 
Childress  v.  Allen 

V.  Hurst  50,  152 

Childs  ».  Bernard  25£ 

V.  ]\IcCliesney 

237,  234,  235,  240,  248,  285 


329 
GG 
210 
11« 
304 
•  )o,  o34 
30,  219 
355 
213 
275 

150 
54 
141 
143 
198 
103 
341 


Cad  runs  v.  Jackson 

19 

C! 

liiiman  v.  Coats 

279 

Caines  v.  Clark 

210 

Chittenden  v.  Rogers 

370 

Camden  v.  Loran 

29 

Cliristy  v.  Dyer 

355 

Campan  v.  Gillett 

120,  174,  313 

CI 

lurcli  V.  Ins.  Co. 

134, 

138 

Campbell  v.  Ayres 

355 

Ci 

pperly  v.  Rhodes 

203 

V.  Blown 

177,  178 

C 

ty  of  San  Francisco  v. 

Pixley 

295 

V.  Johnson 

7,  55,  59 

CI 

apworth  v.  Dressier 

86 

V.  Knight 

101,  131 

CI 

ark  V.  Bell 

60 

«.  Leonard 

323 

V.  Blacker 

103 

V.  Roger 

330 

V.  Bojde 

73 

Canal  Co.  v.  Boiiham 

187,  344 

V.  Hoglo 

119 

120 

V.  Gordon 

71,  73,  74 

V.  Holmes 

103 

Carey  v.  Dennis 

90 

V.  Lockwood 

284 

V.  Fulsom 

205 

V.  Pinncy 

302 

V.  Gregg 

373 

V.  Potter 

854 

XVI 


IXDEX   TO    CASES   CITED, 


PAGE. 

Clark  V.  Tliompson  lOo,  IIG,  170,  200 

V.  Watson  250,  29? 

Clemens  v.  Ranncls  259 

V.  lieynolds  250,  251- 

Clever  v.  Applejjatc  329 

Clowes  V.  Dickenson  81,  82,  205,  225 

Coatcs  V.  Loftus  100 

Cobb  V.  Wood  08 

Cochran  v.  Van  Surley  17G 

Cockercll  ■o.  AVynn      '  284 

Cockey  v.  Cole  55,  174 

Cockney  v.  Milne  27G 

Coc  V.  Columbus  187 

V.  Columbus  &  C.  R.  K.  Co. 

344,  348 
Coffee  V.  Coffee  9,  152,  IGl,  183 

Cohen  V.  Wagner 

57,  154,  155,  157,  158 

Cole  ■».  Gill  355 

Coleman  v.  Bank  of  Hamburg    290 

V.  Lewis  2G9 

T.  Trabine  30 

Collier  v.  Whipple     48,  53,  157,  102 

V.  Stonbaugh      240,  323,  341 

Collins  V.  Farneswortli  101 

Colvin  V.  Wood  230 

Col  well  V.  Carper  359 

Combs  V.  Jordan  349 

Commonwealth  v.  Fisher  209 

-v.  Tenth  ]\[ass. 

Turnpike  Co.  351 

Comstock  r.  Crawford 

101,  102,  111,  112,  122 


28, 


v.  Purple 
Concord  Bank  v.  Greg 
Conger  v.  Converse 
Conrad  v.  Atlantic  Ins.  Co 

V.  Harrison 
Conway  v.  Nolte 
Cook  f.  Dillon 
V.  Fry 
V.  Jenkins 
Cooper  V.  Galbraith  '^ 
V.  Bobinson 
V.  Sunderland 
30,38,62,  100,  101,  103,  121, 
122,  170,  173,  175 


21 


290 
159 
2;il 
279 
83 
343 
32G 
122 
299 


213 

28,  228,  287 
147 


Corbel  1  v.  Zoluff 
Coriel  v.  Hani 
Corlies  v.  Stafbridge 
Corwin  v.  IMerritt 

V.  Benham 
Corning  v.  Hoover 
Corwitii  V.  State  Bank 
Cothran  v.  McCoy 
Cotton  V.  Mar.sh 
Coutliway  t.  Berghaus 
Coviell  c.  Ham 


98,  144 

338 

341 

42 

109 

331 

301 

92 

325 

308,  313 

240,  241 


108 


24- 


Covington  v.  Ingram  37,  171 

Draw  Bridge  Co.  v. 
Shepherd  192,  193,  194 
Cox  V.  Joiner  228,  235,  285 

V.  Nelson  30 

Coyne  v  Souther  29,  282 

Craddock  v.  Riddlesbargcr  322,  324 
Cradlebaugh  v.  Pritchett  131 

Craig  V.  Vance  275 

Cralie  v.  Meem  101,  115 

Cramer  v.  Piedman  90,  310 

Crane  v.  Hardy  228 

Crawford  v.  Lockwood  303 

Creighton  v.  Paine  07,  80 

Creps  V.  Baird  29,  109 

Cresson  ^'.  Stout  335,  337 

Crippin  v.  Crippin  101 

Crittenden  v.  Leitensdorfcr  209 

Crooks  V.  Douglass  281 

Crosby  v.  Elkader  Lodge 

201,  314,  315 
V.  N.  W.  Mauf-.  Co. 

75,  84,  88,  373 
Crouch  V.  Eveleth  97,  99 

Crondson  v.  Leonard  179,  180 

Cruse  V.  Steffen  227 

Crowley  v.  McConkey  106 

Cummins  v.  Long  201,  202,  321,  35G 
Cunningham  v.  Felkner 

227,  23G,  295 

1).  Schley  57 

Curtis  V.  Ballaiih         "  158 

■V.  Millard  314,  315 

v.  Norton  27,  202 

T.  O'Brien  303 

V.  Root  331 

1;.  Tvlcr  80 

Cutts  r.  Hoskins  122,  172 

D. 


Dak  in  v.  Hudson 
Daniel  v.  ]\IcHenry 
Darson  v.  Sheplierd 
Darwin  «.  Ilatlield 
Dater  v.  Troy 

Davenport  v.  Smith  11,  35, 

David  V.  Lent 

Davidson  v.  McMurtry  219, 

V.  Waldeu  '  329; 

Davis  «.  Abbott 

V.  Brandon 

V.  Campbell  243.  289, 

V.  He) big 

V.  Maynard 

V.  McVickers 

■».  Simpson 

V.  Stewart  57, 


42 
292 

373 
149 
301 
102 
258 
254 
330 
218 
144 
297 
171 
347 
221 
134 
143 


INDFI?:   TO    CASES    CITED. 


XVll 


TACT.. 

Davis  V.  Waruack  284 

Davoe  v.  Fanninij;  50,  51,  130, 

184,  135,  130,  137,  159,  160 
Day  V.  Graham  153,  218,  221 

Deadrick  v.  Smith  145,  152,  154,  lljl 


V.  Watkins 

GO, 

145 

Dean  v.  Frazier 

29 

V.  Morris 

29 

DeCaters  v.  DcChamont 

134 

Dclovio  i\  Boit 

181 

Den  V.  Stcelman 

197 

V.  Kickman 

249, 

278 

Dene,!i;re  v.  Haun 

357 

Dennis  v.  McCagc; 

50, 

134 

Denny  v.  Hamilton 

348, 

349 

Denton  v.  Livingston 

348 

Deposit  Bank  v.  Berry 

330, 

331 

Dequindre  v.  Williams 

37, 

171 

Dovoe  V  Elliott 

328 

Dew  11.  Despeaux 

284 

V.  Farley 

284 

V.  Moore 

284 

V.  Wright 

284 

Dickinson  ■?;.  Bur2;e 

296 

V.  Talbot 

50 

V.  Thompson 

200 

Dickerman  v.  Burgess 

221 

Dickey  v.  Beaty 

60 

Dilkey  v.  Dickenson 

373 

Dills  V.  Jasper 

142 

Dingledine  v.  Horsliman 

75 

373 

Dcbson  v.  Kacey 

134 

Dodge  V.  Maclv               319, 

320 

321 

Doc  r.  Anderson 

42,  102,  117 

118 

170 

V.  Bowen                   42, 

117, 

176 

V.  Collins                 242 

304 

338 

V.  Crocker 

240 

V.  Hamilton 

237 

«.  Harvey 

117 

174 

V.  Hoi  man 

241 

V.  Prarratt 

272 

V.  Williams 

148 

d.  .W'oody 

200 

Donaliue  v.  iVLcXulty 

270 

286 

Doolittle  V.  Bryan 

216 

Dorsey  v.  Dorsey 

134 

V.  Gassaway 

165 

Dougherty  v.  Hughes 

311 

V.  Linthicum 

269 

293 

Dowling  V.  Duke 

123 

Downing  v.  Palmetecr 

22 

Draine  v.  Smelser 

289 

292 

Drake  v.  Collins 

240 

Draper  v.  Bryson 

174,  213,  228,  229,  284 
Drinkwater  v.  Drinkwater 

42,  43,  91,  90,  101 


Driver  v.  Spence 
Drury  v.  Cross 
Dubois  V.  Dubois 

V.  McLean     95,  90, 
Dubuque  v.  Wootmi 
Duncan  v.  American  Life 
Co. 

V.  Forsyth  e 
V.  Saunders 
Dunn  V.  Frazier 

V.  Meri'iweathcr  227, 
Durham  v.  Eaton  208 

Duval  V.  Tlie  Bank 
V.  Losky 
I'.  Speed 
Dygert  v.  Fletts 

E. 


120, 
Ins. 


PAOE. 

275 
189 
119 
175 

79 


ili 


283 

259 

290 

209,  303 

228,  285 

237,  285 

93 

93 

149 

300 


Eddy  V.  Knapp 

Eleriuger  t).  Moriarty  265, 

Elliott' i;.  Piersol  37,  01, 103, 170, 
Ellis  V.  Craig 
V.  Diddy 
V.  Smith 
Elston  V.  Robinson 
Eltzroth  v.  Webster  364, 

Emery  v.  Vroman  129, 

Engleman  v.  Clark 
Epley  r.  Witherow 
Erb  V.  Erb  56,  59, 

Eschbach  v.  Pitts 
Erwin  ».  Dundas  195,209, 

237,  250,  260,  280,  318,  319, 
Estes  V.  Booth 

V.  Ashley  241, 

V.  Davis 

'V.  Dendy 

V.  Langdon  241, 

V.  JNIatthewson 

V.  McGIasson        247,  278, 

V.  Monett 

V.  Spurgin  57 

V.  Wilder 
Ewing  V.  Higby  109,  122, 

V.  Hollistcr 
Executors  of  Stead  v.  Course 


F. 

Fairchild  v.  Chastellcux 
Falkner  v.  Davis 
Faris  v.  Banton 
Farmers'  Bank  v.  Clarke 
Farran  v.  Dean 
Farrell  v.  Palmer 
Farrington  v.  King 
Field  V.  Arrowsmith 


200, 


95 


244 
286 
171 

87 
167 
283 
355 
305 
130 

29 
164 
150 

71 

320 
30 

242 
213 
107 
2!)3 

94 
279 
348 
,05 
197 
145 
109 

48 


273 
136 
226 
,  54 
,96 
305 
100 
134 


XVHl 


INDEX   TO    CASES   CITED. 


Fielil  r..  Dorris 

■i\  Goldsby 

V.  ]Milbuni 
Ficro  0.  Bolts 
Finch  D.  Maiiln 
Fi.sliback  v.  Laue 
Fitch  v.  jVIiller 

V.  AVitbcck 
Fithiiin  7\  Monl<s 
Fitz  Gibbon  r.  Lake 
Fitzlui.Lcli  V.  Filzhugh 
Fleming  v.  Maddox 
Floritinc  v.  Barton 

100,101,103,104,105,111,112,171 

Floyd  v.  McKinucy  235 

Fofsom  V.  Carli 

212,  220,  230,  355,  3.)0 
Foot  V.  Colvin  107 

Forbs  v.  Hal  soy  l'j4 

Ford  V.  Douglass  108 

V.  Skinner  •J'^1 

Foreman  v.  Hunt 

7  11,  25,  27,  55,  59,  160 
Fosdick  V.  Ban-        «5,  278,  280,  281 


I'AGK. 

304 

18,  174 

320 

840 

255 

201,  203,  204 

12G 

94,  95,  100 

bG, 171 

IGl 

94 

208,  290 

00,  IG,  17, 


G. 


V.  Kisk 
Foster  v.  Potter 

V.  Thomas 
Fowble  V.  Bayburg 
Fowler  «.  Pearce 
Fox  V.  Hoit 

V.  Mensch 
Frazier  v.  Pankey 
v.  Stoenrod 


270,  271 
348,  350 
45 

2ni 

2GG 

;]5,  103,  111 

1G7,  1G8 

101 

35, 100 


3G,  37,  52,  101,  102,  111,  170,  175 


Frederick  v.  Pacquette 
Frceby  v.  Tupper 
Frooland  v.  Dazoy 
Freeman  v.  Caldwell 
f.  Hill 
r.  Howe 
V.  Hunt 
V.  Mebanc 
Frelingbuys(!n  v.  Colden 
French  v.  Hall 
V.  Hoyt 
V.  51  eh  an 
Frotwell  r.  JMooraow 
Fri-.ch  c.  Kdnunison 
Frizzle  v.  Veach 
Fulton  V.  Moore 
Furgiis  V.  Woodwortlk 
Furguson  v.  Brown 
■D.  L<'e 
T.  Miles 
Furlong  v.  Edwards 


360, 


Gaines  t.  Clark 

V.  New  Orleans 
Gamble  v.  Woods 
Gantley's  Lessee  v.  Ewing 

25,  195,  19G,  241,  338 


PAGB. 

32H 

24 

239 


Garrett  v.  Moss 
Garson  v.  Green 
Gaskill  V.  Morris 
Gaston  v.  AVhite 
Gates  V.  Irick 
Gault  V.  Woodbridge 
Gearhart  v.  Thorp 
Gel  sou  V.  Hoyt 
Gelstrop  v.  Moore 
Gentry  v.  Wagstatf 
George  v.  AVatson 
V.  Williams 


151 
270,  271 
122 
1G7 
'^-77 
Gl 
4 
277 
G7,  80,  81 
170 
42 
190,  200,  272 
2G1 
37 
2G4,  2G5 
G4 
GO,  154 
100 
251,323 
228, 285 
320 


159,  217 

87 

343 

89,  271 

130 

210,  211 

219 

179 

103,  115 

200,  272 

102,  103,  122 

01,  101 


olo 


35 
42 
314 
101 
!7G,  320 
81,  205 
311 
225 
3G3 
360 
12G 
348 
321 


Gerrard  v.  Johnson  3G,  100,  117.  1 
Gibbs  V.  Shaw  39,  40 

Gilbert  v.  Cooley  84,  151 

Gibson  v.  Creshore  311 

V.  lloU 
V.  Shaw 
Gilchrist  I'.  Comfort 

V.  Rea 
Gilky  y.  Uickeuson 
Gill  «.  Lyons 
Gillespie  v.  White 
Gilman  i\  Brown 

1).  Williams 
V.  Williamson 
Gilmore  v.  Eogers 
Gilpin  V.  Howell 
Gimble  v.  Acklev 
Girard  Lifi;  Ins.  Co.  v.  Farmers' 
and  Mechanics'  Banlc 

11,  15,  20,  21,  22 
Girt  V.  Frazier  154,  155,  290 

Givin  V.  McCarroll  41,  177 

Glasgow  V.  Smith  ^     261 

Glass  V.  Greathouse  134,  13 1 

Glen  V.  AVotten  57,  175 

Glenn  v.  Clapp 

'0.  Malony 
Gogoyan  v.  Ditto 
Go'och  'V.  Atkins 
Good  V.  Jsorley 
Goodman  v.  AVhite 
Goodwin  t.  Mix 
Gossom  V.  Donnaldson 
Gordon  v.  Linis 
Gore  r.  Brazier 
Gorham  v.  Wing 
Gottr.  Powell 
Goudy  V.  Hall     35,  CO,  111,  114,  161 
Gould  V.  Garrison  15,  44,  47,  49 


209,  300 

288 

199 

42,  105,  111 

74,  310 

302 

GO 

158 

43 

206 

301 


INDEX    TO    CASES   CITED. 


XIX 


PAGE. 

Goup  V.  Garlier  _  278,  283,  284 

Gouvcrneur  v.  Titus  85 

Gowan  v.  Jones  7,  10,  5G,  59,  G7,  14.3 

Graham  v.  Bleakie  07 

V.  Moore  _     199 

Grant  v.  Lovd  177,  178 

V.  Mcl.achlin  180 

Gray  v.  Briirnardcllu  24,  GO,  Gl 

v.  Gardner  05 

Gra^'son  v.  Silby  <"B8 

Green  v.  Burke  o31 

c.  Johnson  373 

V.  Marks  201,  203,  204 

V.  KanatTfi  20G 

Greene  v.  Burke  230 

Greenup  v.  Stoker  221 

V.  Stronjj;  87 

Gregory  v.  3IcPlierso» 

99,100,101,122,145 
V.  Tabor  58 

V.  Thadwell  209 

Greneniej-er  v.  Southern  Mutual 

Ins.  Co'.  279 

Gridleyi\  Philips  143,144 

Griffin  v.  Boirart  174 

t:  Coffey  300 

V.  Marine  Co.  134 

i\  Thompson        25,217,330 

Griffith  V.  Bogart  12,  26,  228 

0.  Fowler 

4,  7,  20,  179,  182,  339 

V.  Frazier  101 

■0.  Hadiey  J59,  200,  293 

V.  Huston  327 

Grifrnon's  Lessee  «.  Astor 

10,  15,  10,  17,  19,  33,  35,  37,  38, 

39,  40,  41,  42,  52,  94,   100,  102, 

103,  104,  100,  no,  111,  112,  122, 

120,  127,  171,  174,  179,  180 

Griswold  v.  Sedgwiek  100 

V.  Stoughtou  299 

Gross  V.  Fowler  200 

T.  Pearcy  00 

Gue  V.  Tide  Water  Canal  Co. 

344,  345,  347,  348 
Guitteau  v.  Wiseley  302 

Guy  V.  Pierson  103,  115 

Gwyn  V.  Latimar  237 


ir. 


Haekworth  v.  Zollars  GOO,  301 

Hadden  v.  Johnson  30 

Haddix  c.  Iladdix  134,  227 

Hagaman  v.  Jackson  198,  287 

V.  Johnson  04 

riaggerty  v.  Wilber  329,  330 

.Haines  v.  Beach  23,  83 


I'AGE. 

Haines  v.  Linscj^  201 

Halle  Fisher  311 

Hale  V  Heaslip  355 

Hall  V.  Thomas  312,  314 

Halleck  v  Guy      4,  0,  7,  04,  107,  123 

Halstead  «.  Haskin  211 

Hamilton  v.  Burch  292,  293 

V.  Bush  292 

V.  Dunn  70,  73 

V.  Lockhart  170 

«.  Lyman  210 

V.  Quinby  290 

Hammersmith  v.  Espy  29 

Hammit  v,  W_yman  341,  347 

Llaudy  v.  Dobbins  323 

Hanger  v.  Abbott  31G 

Hannibal  &  St.  Joe  U.  Tl.  Co.  v. 

Brown  290,  301 

Harding  v.  Sjiivey  320 

Hardin  v.  Cheek  275 

■c.  Hudgins  177 

Harkrider  i\  Harvey  137 

Harlan  v.  Merrill    "  9 

Harmon  v.  Stipp  297 

Harper  v.  Hill  380 

V.  The  New  Brig  181 

Harrington  «.  O'Riley  "               240 

Harris  v.  jVIakepeace  22.'> 

V.  Parker  134,  IGO,  227 

Harrison  v.  Doe  246 

v.  Harrison  9,  10,  4,  57, 168 

V.  Kramer  201,  284 

■p.  Maxwell  275 

■V.  llapp  241 

t\  Sipp  220,  245,  250 

i   Harshev  v.  Blackmare  170,  249 

Hart-y.^Blight  154 

V.  Jevvett  85,  111 

V.  Hector  30,  250 

Harlh  v.  Gibbs  29 

Hartman  v.  Clarke  89,  90 

Hartwell  v.  Bissell  323 

Haryc}'  v.  Spalding  307 

Hastings  v.  Johnson  255 

Hathaway  v.  Valentine  101 

Havely  v.  Loury  329 

Hawkins  v.  Hawkins 

102,  117,  118,  170 

T.  Miller  302 

Ilayden  v.  Birney  324 
V.  Dunlap 

235,  240,  289,  293,  298 

Haynes  r.  Baker  200 

V.  Beach  148 

(1.  Breaux  343 

r.  Meeks       58,91,307,368 

Hays  V.  Hate  141 

T.  Thode  314 


XX 


INDEX   TO   CASES   CITED. 


PARE. 

810 

165 

009,  310 

24'J,  278 

353,  354,  355 

2G8 


Haywood  v.  Jiulson 
V.  ]\Iuugei- 
Heard  v.  Hall 
Heimstrcet  v.  Winnie 
Heister  v.  Fortncr 
Helfensteiu  v.  Cave 
HoltVich  V.  Weaver 
Helm  V.  Duilcy 
T.  Darby 
Hemstead  v.  liead 
Henderson  v.  Harrodetal 

V.  Herotl    50,  57,  G8,  143 
Hendrickson  v.  U.  K.  Co.  284 

Henry  v.  Fersjuson 
T.  Hyde 
V.  Keys 
V.  Mitchell 
Herdraan  v.  Short 
Herod  r.  Bartley 
Herrick  v.  Graves 

30,  22 
Hershey  v.  Hershcy 
Hess  V.  Voss 
Ilewson  V.  Dcygert 
Heyer  v.  Deaves 
Hickenbotham  v.  Blacldedse 
lH<^lit  V.  Steamboat  Henrietta 

"^  179,  185 

fliidretli  v.  Thompson  210,  237,  318 
- —      ■"  '  244 


198 
296 
335 
153 


285 
198 
303 
254 
IIG 
335,  330 

230,  250,  297 

90 

130,  131 

218,  219,  208 

44,80 

132 


— >i,  ^iO. 


Hill  V.  Baker 
v.  Harris 

Hilton  V.  Williams 

Hinds  1'.  Scott 

Hobson  V.  Doe 

Hoirau  r.  Lucas 
■I).  White 

Hof!:s  V.  WMlkins 

Hoyt  V.  Plolcomb 

Hold  en  v.  Plnney 

Holenian  v.  Holeman 

Holiday  v.  Franklin  Bank 

Holland  v.  Jones 

HoUoway  v.  Kichardson 

Holmes  v.  Beal 

V.  Holmes 
t\  Kenibeu 
Homer  v.  Doe 
Homes  v.  Duncaster 
Hoosier  v.  Hall 
Hoolen  v.  H inkle 
lioppini^  V.  Burnam 
Horbacii  v.  Riley 
Horn  f.  Tuft 
Horton  v.  Horton 
Hoskins  v.  Wilson 
Houi;li  V.  Canby 
House  V.  Sh'.nvaltcr 
Houts  V.  Showalter 


330 
15 

284,  285 
240 


;01,  371 


How  v.  Starkweather  347, 

Howard  v.  Bugbee  304, 

V.  Moore  119, 

Howell  V.  Baker 

1).  McCrecry 
Howett  V.  Selby  75, 

Hoy  V.  Allen  278, 

Hubbard  i).  Barnes 

227,  223,  23G,  285, 
301, 


372 

94 

200 

159 

355 

321 

85,  280 

75 

42 

02,  03 

40,  47 

ISO 

117 

283 
293 

211,  213,  227 
270,  271 
355 
103 
138,  157 
118 
150 

132,  133,  207 


348 
305 
140 
290 
100 
373 
279 


IHibblc  V.  Eroadwell 

V.  Vaughn 
Huberts.  McCiiUum 
Huddlestone  v.  Garrett  210, 

Hudson  V.  Tibbetts 
Huger  V.  Huger 
Hutc,a'i»s  V.  Ketchum 
Husrlies  v.  Streeter 

247,  29G,  203,  312, 
Hull  V.  Carnby 

Hultz  V.  Hackley  282, 

Hulupli  V.  Beescn 
Humphry  v.  Beeson 
V.  Browne 
s.  Humphreys 
Hundley  v.  Lyons 
Hunt  V.  Bullock  326, 

v.  Greg2; 
V.  Loucks 
'V.  Norton 
Hunter  v.  Hunter 

V.  Stephensop 
V.  Watson 
Huntingdon  v.  Grantland 
Hurd  zj^Eaton  205,  207, 

Hushmacker  «.  Harris'  Admr4o, 
Hurst  V.  Lithgrow 

V.  StuU  4,  7, 

Hut  ell  ens  v.  Doe  31, 24G,  247, 250 
Hutchius  V.  Barnett       242,  304, 

■j;.  Moses 
Hutchinson  v.  Moses 
Hutton  V.  Williams  64 

Hyatt  v.  Spearman 
Hyde  v.  Farmer 


I. 


286 
303 
279 

284 
250 


125 
275 

339 
323 

283 
284 
275 
330 
196 
87 
34G 
338 
318 
158 
197 
253 
268 
198 
225 
217 
196 
183 
297 
338 
293 
291 
130 
355 
100 


Iddings  V.  Bruen 

Iglehart  v.  Armiger  4,  7, 

Hveliieimer  v.  Chapman 

HliuM-worth  v.  Miltenberger 

Indiana  Kly.  Co.  i\  Bradley 

Ingals  V.  Lord 

Ins.  Co.  V.  Halleck  56,  210, 

V.  Lcdyard  249, 

V.  Miller  83,  205, 

Irwin  r.  Brian 

v.  Jcffers  60, 


134 
183 
91 
343 
243 
323 
250 
278 
22^ 
210 
161 


INDEX   TO    CASK   CITED. 


XXI 


■V.  I5artlett  227,  284 

V.  ]5iitoinan  197 

«.  I5()\ven  84 

V.  Urowu  lol 

V.  Bu.sli              2G1,  2G2,  287 

V.  Caldwell  341 
X.  Chamberlain 

24!),  278,  283 
«.  Collins  3;54,  o35,  o42 

•0.  Davenport  74 

V.  Delaney  227 

V.  Hall  2(18 

V.  Jones  275 

«.  Luce  8o,  280 

V.  McConnell  27o 

V.  Newton  217,  293 

V.  Post  283 

V.  Pratt  27.") 

V.  Randall  2G1 

V.  Koberls  275 
•23.  Robinson 

37,  98,  99,  119,  174 
V.  Rosevelt 

227,  235,  2S4,  285,  294 

V.  Streeter  275 

v.  Terry  283 

©.Todd  128 

V.  Van  Ualfsen  138 

V.  Vanderlieyden  285 

V.  Warren  141 

t\  Williams  198,200 

V.  Youns;  213,  214 

James  v.  Ilubbaixl  81 

V.  Kusiek  99 

V.  Plank  road  Co.  346,  347 

v.  Pontiac  Plankroad  Co. 

344,  348 

tj.  Railroad  Co.  191 

■V.  Strattou  324 

V.  Tayhn-  147 

Janncy  v.  Speddcn  8() 

January  ?>.  BradAjrd  200 

Jarvis  v.  Kusiek  97 

Jenners  v.  Uoe  223 

Jennings  v.  Jenkins  93,  107 

V.  Kee  (ii) 

Job  V.  O'Brien  200 

Johns  V.  Johns  348 

Johnson  v.  Adair  319 


VAr.r.. 

TAOE. 

Irwin  V.  Sloan                                 373 

Job 

ison  V.  Adleman 

270 

Isaacs  V.  Gearhart                          219 

V.  Baker 

258,  31G 

Iverson  «.  Loberi^ 

'D.  Bantock 

203 

GO,  122,  12G,  IGl,  171,  180 

V.  Candago 

311 

V.  Collins 

91,  92,  101 

J. 

V.  Cranford 

322 

V.  Crawley 

2G8 

Jackson  v.  Anderson      253,  327,  341 

V.  Harmoii 

311 

V.  Babeock                         35 

V.  Hart 

200 

V.  Johnson  35,  IIG,  159 

V.  Lynch  318 

V.  McLean  320 

V.  Stevens  250 

Jones  V.  Ilallopelter  149 

V.  Peasley  321 

V.  R.  R.  Co.  289 

V.  Steamboat  Commerce 

184,  185,  18G 

V.  Swan  .    74,  77 

V.  Thomas  150,  2G7 

Jourdan  v.  Bradshaw  275 

Julian  v.  Beal  303 


Kauftman  v.  Walker  150 

Keeling  v.  Heard  24G,  308,  31G 

Kellosrg  V.  Grilhn  208 

Kelly  y.  Abbott  307 

y.  Baker  358 

'0.  Chapman  70 

V.  Green  219,  275 

Kemper  v.  Bazey  279 

Ken/.ie  v.  Bron.son  240 

Kershaw  v.  Thompson 

15,  22,  23,  G7,  80,  81 

Kholert'.  Kholer  149 

Knight  i'.  Applegate  25J 

Kneetles  v.  Newcomb  353,  3G3,  3G5 

Knowles  v.  Rablin  310,  311 
Koehler  v.  Ball 

55.  5G,  58,  59,  141,  143 

Kruse  v.  Steffens  50,  134 

Kidder  v.  Orcutt  197 

Kilby  V.  Ilairiiin  213 

Kilgore  v.  Peden  28,  30,  220 

Kilgourc.  Crawlbrd  131 

Kiilam  v.  Janson  249 

Kimball  v.  Cook  70 

King  V.  Cushman  254,  335 

V.  Goodwin  253 

V.  Gunnison  G3,  G4,  107 

t\  Kent  18 

V.  Masterton  143,  155 

V.  Piatt    48,  152,  154,  157,  158, 

159,  101,  102 

V.  Tharp  290 

V.  Whitely  80 


XXll 


IXDEX    OF   CASES   CITED. 


Kimmcl  t\  Stores 
Kiiiucy  V.  Knocbic 

r.  Noble 
Kirk  V.  Yonbcrs: 
Kiser  v.  Iiudclick 
Kizer  «.  Sawyer 


TAGY.. 

•sr,o 

227,  228,  285 

218 

27G,  277 

218 

l'J7 


228 

228! 


Lainq-  v.  Cnnningliam 
La  Farce  Ins  Co.  v.  Ik'll 
Laight  i).  Pell  152, 

Lamb  v.  Buckmellcr 

V.  Johnson 

r.  Shays        201,  202,  35G, 
Lamkin  v.  Crawford 
Lamotlic  v.  Lcppott 
Land  v.  Hopkins 
Landers  «.  Brant 

197,  198,  227 
Landes  v.  Perkins 
Landrnm  v.  Hatcher 
Landsdown  v.  Elderlon 
Lane  v.  Fox 

V.  Tiiompson  94, 

Lane:  V.  Waring 
Langwortliy  «.~  Baker  99, 

Lansing  v.  Goelet 

V.  McPiierson 
V.  Qiiackenbiish 
Laport  V.  Todd 
Lapsley  v.  Brash  cars 
Larned  v.  Allen 

Larsliley  v.  Cassell  292, 

Lathrop  v.  Brown  210, 

Latimer  v.  Union  Pacific  R.  R. 

Co. 
Latrobc  v.  Herbert  57, 

Lattinger  v.  R.  R.  Co. 
Lauglilin  v.  Schuyler 
Laughman  v.  Thompson 
Loutz  v.  Worthington        53,  54, 
Laurence  t\  Speed 
Lavalle  v.  Rowley  252, 

Lavertv  v.  Hall 

Law  i-.'Smith  240, 

Lawrence  v.  Carnell 

V.  Speed  213, 

Laws  V.  Thompson 
Lawson  v.  Jordan  371, 

Lazarus  v.  Bryson 
Leach  v.  Pine 
Leaton  t.  Stade 
Lee  V.  Gardner 
Lcedon  v.  Plymouth  R.  R.  Co. 

344, 
Lefevre  v.  Laraway  154, 158,  IGl, 
Lemon  v.  Craddock 


205 
158 
300 
323 
357 
343 
172 
197 

284 
284 
280 

GO 
240 
105 

29 
100 

80 
1C3 

r,03 

2GG 
338 
251 
293 

281 

259 
15G 

48 

G5 

8;]G 

285 

341 

310 

242 

83 

228 

303 

372 

227 

329 

GG 

09 

346 
1G3 
2G4 


Leonard  v  Taylor 
Leveiett  ■?;.  Armstrong 
Levi  ®.  Sliockley 
Levy  V.  Thompson 
Lewis  V.  Lewis 

V.  Palmer 

V.  Smith 

V.  Thompson 
Lex  V.  Patten 
Lieby  v.  Parks 
Lieper  v.  Thompson 
Lightfoot  1).  Lewis 
Li  Hard  v.  Casey 
Lisliy  V.  Gardner  5C,  59, 141, 
Littell  V.  Scrantou 
Little  v.  Luntz  154, 

v.  Lennctt52,101,121, 
Littler  v.  People 
Livingstone  v.  Nceley 
Locker  v.  Coleman 
Lockwood  v.  Mills 
Logsdon  v.  Spivey 
Long  V.  Burnett 

36,  52,  97,  99, 
Long  Dock  Co.  v.  Mallory 
Loom  is  V.  Riley 
Love  V.  Cherry 

V.  Jones 
Lovel  V.  Powell  227, 

Lowry  v.  Coulter 
Loyd  V.  Maloue 
Lucas  v.  Doe 
Ludlow  1).  Johnson 

V.  Wade 
Lynch  v.  Baxter  IS, 

Lyon  V.  McGufley 
Lytle  D.  Ciu.  Manf.  Co. 

M. 

]^racon  &  West.  R.  R.  Co.  v. 

ker 
Macy  V.  Raymond  119, 

JVIcAflec  V.  Harris 
]\IcBain  v.  McBain  27, 

JIcBride  v.  Longworth 
jMcBroom  v.  Rives 
]\IcBurnie  v.  Overstrect 
IMcCall  V.  Elliott 
McCandish  v.  Kecne 
McCants  v.  Bee 
McCloud  V.  Hubbard 
j\[cClintock  v.  Graham 
McClure  v.  Englehart 

264,  265, 
t\  Sutton 
McCollum  v.  LIubbert 
McConihe  v.  Sawyer 


PACE. 

159 

05 

329 

197, 

198 

113 

253, 

341 

29, 

276 

201 

350 

GO 

250 

18 

305, 

306 

14G, 

150 

349 

155, 

15G 

123, 

174 

309 

138 

224 

134, 

135 

329 

100, 

174 

18G 

131, 

275 

227 

270, 

271 

284 

285 

329 

157 

159 

237 

104 

105 

121 

174 

1G7 

1G8 

88 

374 

373 

Par- 
192,  345 
141,  146 
258 
2GG.  301 
G2,  161 

O  lb 

329 
179 
91,  101 
134 
322 
o31 

27G,  277 
331 
296 
199 


IXDEX    TO    CASES   CTTKI). 


XXlll 


PAGE. 

McCoiHiell  V.  Brown  195,  S27 

V.  Gibson  50,  134,  227 
r.  Smilli  23 

McCormack  v.  Sullivan  33,  lOG 

V.  AIcMurtrie  2G8,  27G 
McCough  V.  Wellington  343 

McCoy  V.  Morrow  1(5 

McCracken  v.  Haywood  240,  338 
McCread}'  v.  Brisbane  2(i5 

McCulloh  V.  Dashiell  97 

McCurdy  v.  Canning  199,  272,  274 
McDonald  v.  Allen  94 

i>I  cE  1  ni  u  r ry  'j\  Ard  i  s  261,  2G4 

McFadden  v.  Wortliington  228,  278 
McGaher  v.  Carr  255 

McGec  V.  Cherry  322 

McGee  v.  Ellis  802,  339 

«.  Mellon  149,  105,  271 

McGowan  v.  AVilkins  G7,  80,  71 

McGinty  v.  Herrick  253 

McGuire  v.  Kouns  275 

jMcInerny  v.  Bead  15,  70,  71,  73 

JMcIntire  ■«.  Durham  213 

Mejilton  v.  Love  IGl 

McKinney  v.  Carroll  838 

V.  Lamplc}^  823 

McKniglit  V.  Gordon  25,  27,  28 

McLaughlin  v.  Janney  120,  121,  174 
V.  Scott  217 

V.  Shields  258 

McLain  v.  Upchurch  29,  27(i 

McLean  v.  Brown  302 

Bank  v.  Flairg  218,  24G,  £89 
JIcLeod  V.  McCall     '  227 

JVIcLosjan  v.  Brown  CO,  GG,  IGI,  309 
IMcMahon  v.  (Jreen  :;20 

IMcMullen  v.  Gable  290 

AIcMillan  v.  Parsons  27G 

^IcNiel  V.  Bean  371 

IVrciSrutt  V.  Brand  3G] 

McPlierson  v.  Cunlilf  15,  17,  18,  10, 
"9,42,  102,  103,  104 
i\  Foster  2!iG 

McWillianis  v.  Myers  ^4 

Madden  v.  Cooper  IIG,  122 

;Maddox  v.  Sullivan  ::l:! 

Maer  v.  Boothy  119 

Magoun  v.  Ins.  Co.  180 

Malionev  i\  Horan  ^,"1] 

Major '«.' Deer  198,  2.S.S 

JIalony  v.  Fortune  304 

j^Fan  «."  McDonald  157 

JIanly  v.  Peitce  1:1 1 

jSIaple  V.  Kussart  GO,  1G5,  ICG 

^laples  V.  llow  45 

V.  Nelson  241 

Mark  y.  Wil lard  KU 

Marr  v.  Boothby  174 


PAOB. 

Marsh  v.  Laurence  823 

Marshall  v.  Cunningnani  820 

V.  McLean  2G9,  277 

r.  JMoore    82,  205,  207,  225 

]\Lirlin  v.  Davis  323 

V.  Drydcn  280 

V.  Hargadine  50 

V.  Jackson  200 

V.  McCargo  228,  285 

V.  I\Lirtiu  208 

V.Starr  118 

Marvin  «.  Taylor  73,  74,  75 

Mascroi't  v.  Van  Antwerp     214,  226 

Mason  v.  Ham  119,  140,  174 

V.  ]\Iessenger  35 

V.  Osgood'4,  G,  10,  55.  11G,  183 

V.  Payne  205,  207,  225 

V.  Thomas  803 

V.  Wait  12G,  127,  1G8 

V.  While  2G9 

Massey  v.  Thompson  28,  283 

V.  Wescott  278,  279,  280,  283 

i\Iassic  V.  Long  237 

V.  AVilson  . 

8t.  83,  205,  28G,  311 

IMatlicson  v.  Ilearin  18 

Matilda  v.  Lockridge  123 

Matthews  v.  Clifton  2G5 

V.  Warne  373 

Mattison  v.  Baucus  323 

INIaurier  v.  Cook  2-:-7,  284 

Jlaxwell  V.  Read  8G3,  306 

May  V.  i\Liy  155,  157,  159 

V.  Raymond  146 

V.  Walters  210,  333 

Mayliam  v.  Combs  _      85,  280 

Mayor,  etc.,  v.  Colgate  70 

Mechanics'  Bank  v.  Merchants' 

Bank  350 

Medhurst  v.  Wait  3,  11 

IMeeker  v.  Evans  48,  217,  218 

Meller  v.  Boardman  1G8 

Mendenhall  v.  The  Westches^r 

&Pliila.  R.  R.  189,190 

Messer  v.  jMeycr  353 

Mercer  v.  Doe  228.  233 

Merrill  v.  Harris  IIG,  I7i 

Merritt  v.  Horne  35 

V.  Kiles  825 

Merry  v.  Bcstwick  197,  307 

Messenger  t.  Kinlncr  41 

iMeyer  v.  Jleyer  8G0 

Jlichoud  V.  Girod 

50,51,68,  GO,  128,  130, 
134,  135,   130,  187,  139, 
140,  157,  159,  100,  237 
Miles  V.  Wheeler 

50,  134,  138,  139,  IGO 


XXIV 


tS'DEX   TO   CASICS    CITED, 


PAGE. 

i^Iillcr's  Exrs.  t.  Grccnbaum    19,  20 

MilkT  v.  Finn  29,  109 

T.  Hull  157 

■p.  Lewis  305 

V.  Miller  99,  115,  158 

V.  Sherry  174,  279,  8fi7 

Million  V.  Riley  27G 

Mills  «.  Goodsell  ;J42 

V.  Rosrers  295 

Milton  V.  Love  301 

Miner  v.  Cassat  210 

Minnesota  R.  R.  Co.  v.  St.  Paul 

4,  23,  24,  49,  55 
Minor  v.  Herriford  329 

M inter  v.  Dent  343 

jMintnan  v.  Striker  329 

Mitchel -y.  Diinlap  134 

V.  liackett  330 

V.  Steamboat  Magnolia  ISO 
Mi.xer  v.  Sibley  290,  310 

Mobile    Cotton    Press    Co.    v. 

Moore  293 

Mockbec  v.  Gardner  1C8,  178 

v.  Mockbec 

Molia^vk  Bank  v.  Atwater  48 

Moline  v.  Webster  97 

Monchat  v.  Brown  253,  341 

Monroe  v.  Douglass  180 

V.  Thomas  344 

Montgomery  v.  Barrows  219 

Moore  v.  Detchnandry  287 

V.  Fitz  330 

«.  Gi'een  05 

V.  Kiel  30,  100,  102 

■e.  Sl'.ultz 

4,  9,  15,  17,  19,  55,  59,  183 

^.  Stark  104,112 

r.  Tifman  143 

r.  Wiiite  94,95,99 

«.  The  Widow  91,93 

Moorland  v.  Kimberlin  342 

Mortran  t\  JLason  275 

Morris  v.  Bradford  250 

V.  Bruce  254 

V.  II ogle 

100,  102,  114,  174,  170 

^•.  Ward  201,  203 

Morrison  v.  Pruce  219 

V.  Dent  284 

Morrow  v.  Brenizer  197 

V.  Weed  35,  37,  52,  100,  101, 

102,103,111,121,  123,  174 

Morsan  r.  Brnnliani  287 

Mor.se  V.  Coold  ij.l 

Morton  r.  Sloan  J4G 

Mf>ss  V.  3Ioor(!  329 

Mount  c.  Vallee  149 

Jl<J\vry  V.  Adams  08 


Muir  V.  Craig  303 

Mulks  V.  Allen  295 

Mullikin  v.  Mullikin  4,  101,  108 

Muraford  v.  Armstrong  217,  330 

Mjer  r).  Douglass  ]20 

Myers  v.  Cochi'au  254 

V.  ]\IcDonald  102,  111 

v.  McDougal  10,  35,  173,  117 

V.  Saunders  293,  327 


Naglee  v.  Pacific  Wharf  Co.        340 
Nason  v.  Allen  199 

Natchez  v.  Minor  213 

National  Bank  v.  Spraguc  40 

of  the  Sietroioolis 
V.  Sprague  49 

Fire  Ins.  Co.  t\  Loomis  04 
Neal  V.  Stone  .   159 

Neary  v.  Cahill  14-8 

Neil  V.  Hughes  148 

Nelson  v.  Bowen  289 

Nesbitt  V.  Dalian  290 

New  Ark  Town  Council  v.  Elli- 
ott 349 
Newel  V.  Sibley  320 
V.  llayden  353 
Newson  v.  Wells  05 
Newton  v.  Nunnalby  371 
New  York  &  New  llaven  R.  R. 

Co.  V.  Schuyler  350,  351 

Nichols  V.  Dewey  207 

V.  Disner  286 

V.  Ketchum  337 

Niel  V.  Hone  298 

Nielsen  v.  Nielson         218,  253,  341 

Noble  V.  Coi)e  370,  371 

Noel  V.  Temple  77 

North  Pres.  Cliurcli  v.  Jevne         84 

Norton  v.  Norton  93,  143 

V.  Williams  278,  279 

Nowell  V.  Nowell  43,  94 

Nowler  V.  Coit  33,  177 


O. 


O'Conner  v.  Warner  374 

Ogden  V.  Gidden  235 

Ohio  Life  Ins.  and  Trust  Co.  v. 
GibUm  •        70,  71, 73 

^•.  Gordon 

15,  57,  108 

Oliver  v.  Caton  G7 

V.  Croswell  809 

V.  Piatt  50 

O'Neal  V.  Duncan  287 

Ontario  B'k  v.  Lansing  291,  295,  303 


INDEX    TO    CASES   CITED. 


XXV 


PACE. 

Onnsby  v.  Tcrrj'  <)'7 

Orsborn  v.  Cloud  323,  336 

V.  Tunis  275 

Orth  v.  Jen n  in gs  249,  278 

Otis  v.  Wood  323 

Oviatt  V.  Brown  281 

Owens  V.  Slater  140,  1G5 

r.  Thompson  107 

Owsley  V.  Smith  108 

P. 

Pa.£re  v.  Cole  99,  271 

Palilman  v.  Graves  97 

Paine  v.  IMoorland  39,  104,  108 

V.  Pendleton  103 

Palmer  v.  Clarke  373 

'«.  Forbs  32G,  34G 

V.  Oakley  120,  145 

V.  Palmer  99,  100,  259 

PanncU  v.  The  Bank  80 

Parham  v.  Thompson  323,  324 

Parker  v.  Kane  37,  52,  171,  174 

V.  Keene  180 

i;.  Nichols  101,121 

V.  Pierce  249,  278,  279 

f.  Storts  150,  151 

Parkman  v.  Welsh  206 

Parshall  v.  Shirts  225 

Patterson  ».  Carncal  219,  254 

Patton  V.  Stewart  293 

Paul  V.  Hussey          35,  103,  103,  111 

Payne  v.  Bellingham  336 

Peak  V.  Shastcd  101 

Pearson  v.  ]\Iinturn  350 

Peck  V.  Mallams  259 

Peet  V.  IMorsian  188 

Pel  1  ct rea u  uT  Smith  91 

Penhallov,-  v.  ])oane  179 

Pennablow  y.  Dwight  323 

Penn  v.  Craig  48 

v.  Ileisey  4,  167 

Pensonneau  v.  Bleakby  50 

Pennington  v.  Clifton  303 

V.  Yell  199 

People  <i.  Baker  311 

V.  Boring  2G1,  2G2,  264 

V.  Bradley  321 

V.  Stanley  118 

Pepper  v.  Commonwealth  219 

Perkins  «.  Dibble  275 

i\  Fairtield  39,  104 

V.  Tliorapson  342 

T.  Winters  93 

Perpetual  Ins.  Co.  v.  Goodfellow  350 

Perry  v.  Clarkson  120,  174 

V.  Brainard  128 

Petermun  v.  Watkins  143 


PAGE. 

Peters  v.  Ins.  Co.  180 

Petit  V.  Petit  91 

Pewronneau  v.  Bleaklev  134 

Phegley  v.  Tatum  "179,  180,  185 

Phelps  V.  Butler  197 

V.  Conover 

017    010    001     000,    OOP 

V.  Cowen  218 

Phil.  &  Trenton  R  P.   Co.  v. 

Stimson  171 

Philips  V.  Coffee     213,  228,  275,  285 

V.  Dana  235,  248 

«.  Johnson  29 

V.  Jamison  261 

Picket  V.  Harlsock  238,  255 

Piel  V.  Brayer 

217,  224,  225, 235,  246,  294 

Pierce  v.  Benjamin  343 

V.  Gates  87,  88 

V.  Roche  323 

Pierse  J!.  Trigg  126 

Pierson  v.  DaVid  89,  271 

Pitt  V.  McGee  332 

Pitts  V.  Hendrix  199 

V.  McGie  196 

Pjttsburu'h  &  Stcubcnville  B.  E. 

Co.  V.  Jones  88,  270,  271 

Planter's  Bk.  v.  Fowlkes  GO,  07 

?;.  Leavens  348 

V.  Merchants'  Bank 

348 
Plummer  i\  Webb  181 

Plymouth  R.  R.  Co.  v.  Caldwell  344 
Polk  V.  Gallant  277 

l^ool  V.  Young  338 

Pope  V.  Ewbank  355 

Popleston  V.  Skinner  339,  340 

Porter  ®.  Millet  197 

Post».  Leet  101 

Potter  V.  JIcDowell  279,  283 

Pound  V.  Pullen  250 

Ponder  v.  Moseley  30 

Prather  v.  Hill  289,  290 

Prescott  'B.  Everts  261 

V.  Wright  3'>8 

Preston  v.  Harrison  303 

Prevost  V.  Gratz  50,  51 

Price  V.  Johnson  33,  1G6 

Prior  v.  Stone  355 

Proctor  V.  Farnum  145 

Pond  V.  Pullum  210 

Pucket  ?;.  The  United  States        109 
Pugh  V.  Callaway  329 

v.  Pugh  118 

Purley  t.  Havs  03 

Pursley«.  Hays  35,120,171 

Purzcv  V.  Scnier  i3-4 


XXVI 


INDEX   TO    CASES   CITED. 


Q- 


Quackcnbiish  v.  Danks  338 

Quiiicy  Seiniiuuy  v.  Jasper  142 


R. 


311 

2()0,  277 

2oo,  256 

205 

210 


Hand  V.  Hand 
Rankin  v.  Scott 
Ransom  v.  Williams 
Rathbone  -o.  Clark 
Rawley  v.  Hooker 
Ra\vUni::s  v.  Bailey 

4,  15.  55,  5(5,  m,  lie,  141,  142,  143 

Raj-  V.  Birdseye  320 

V.  Ilarconrt  329 

Raymond  v.  Bell  103 

V.  Ewing  84 

)!.  Pauli  222,  290,  299 

Read  v.Fhc  178 

V.  Heasley      104,  1G7,  275,  288 

Reardon  v.  Searccy  30 

Rector  V.  Hart  293 

Reddick  v.  The  Bank  35 

Redlield  «.  Hart  74 

Redman  v.  B;dlamy  10(5 

Reed  v.  Brooks  154,  290 

V.  Carter  293 

V.  Diveu  224,  289 

'V.  Pruyn  339 

Reeder  v.  Barr  138 

Reese  i\  Burts  317 

Reeves  v.  Sebem  320 

V.  Townscnd  35,  103,  289 

Reichart  »   IMcCIure  270 

Relle  V.  Bibb  225 

Reminuton  v.  Linthicum  30,228,248 

Remicic  v.  Butterfield  134,  138,  227 

Requa  v.  Rea  00 

V.  Rhela  145 

Revalk  v.  Kiaemer  201 

Rew  V.  Wood  240 

Revnolds  v.  AVilson 

44,45,49,52,115,175 
Rhode  Island  v.  Massachusetts 

35,  104,  105,  171 

Rhodes  v.  ^IcConnaclc  359 

V.  iVIe.ironegal  322 

V.  Woods  331 

Rlionemus  v.  Corwin  150 

Rhorer  v.  Terrill  212 

liicardv.  Williams  99 

Riccf.  Cle-rhorn  139,227 

V.  Parkman  39,  104 

Richards  v.  Holmes  53,  54,  304 

Richardson  v.  Jones  134 

liiclimond  v.  ^VJarston  302,  303 

Ricks  V.  BIoumL  373 


PAGl!. 

Riddle  v.  Bryan  270 

Rider  v.  Alexander  209 
Rid2;e  Turnpike  Co.  v.  Slover      34(J 

Ridgway  v.  Coles  42 

Riogs».  Dooley  228,285 

Riiey  v.  McCord  173 

Rindskolf  v.  Lyman  323 

Riner  v.  Stacey  2.  \  333 

Ringo  V.  Binns  50 

Ringold  V.  Patterson  290 

Rislev  V.  Richer  45 

Riter"».  Henshaw  29,  294,  303 

Rizor  V.  Snoody  95 

Robb  V.  Beaver  200,  273 
V.  Irwin   39,  104,  108,  109,  113 

Robbius  V.  Bates  138 

V.  Butler  50,  134 

Robert  v.  Casey  120,  129 

Roberts  v.  Fleming  134,  137 

V.  Roberts  101,  1(52 

Robertson  v.  Campbell  78 
V.  Dennis      305,  312,  313 
Robinson  v.  Atlantic  &  G.  W. 

R.  R.  Co.        212,  334 

V.  Martel  144 

Rockncll  V.  Allen  29,  290 

Rockhill  ».  Hauna  211,281 

Rogers  v.  Brent  198 

V.  Dickey  277 

«.  Dill  120 

«.  How  107,  108 

T.  Jones  80 

V.  McLain  33 

T.  Smith  29 

Rose  V.  Persse  73 

Rosier  v.  Hale  304,  338 

Ross  V.  Duval  301 

V.  Ross  348 

V.  Weed  221 

Roth  V.  Wells  329 

Rowland  v.  Goldsmith  372 

Rowley  v.  Webb  47,  48 

Runyon  v.  N.  Ark.  In.  Rub.  Co. 

48,  110 

Russell  V.  Gibbs  337 

v.  liichards  53,  54,  330 

Rutherford  ■;;.  Greed  277 

V.  Haven  310 

Ryan  v.  Dox  148,  174 


S. 


Sackett  v.  Twining  15,  21 

Saltmarsh  v.  Been  134 

Saltonstall  v.  Riiey  39,  104,  147,  174 
Samory  v.  Hebrard  198 

Sample  v.  Barr  50 

Sand  V.  Granger  175 


INDEX   TO   CASKS   CITED. 


XXVI 1 


•PAGE. 

Siuifonl  V.  Granger  !i<; 

San  Francisco  v.  Picklev  200 

V.  Pirley'  29;] 

Satchcr  v.  Satclicr 

17,  18,  3G,  87,  39,  104 
Sauer  v.  Steinbaeur  217,  343,  330 
Savao;e  v.  Best  270 

Rcaniiiion  v.  Swartwout        239,  250 
Schafrer«.  Cadwallader  279 

Sehneidcr  ?j.  McFarland  41 

.Schnell  v.  Chicago  101,  114, 115, 123 
Scliofield  V.  Bcsscnden  313 

Schrader  !■.  Wolfin  325 

Scliriver  v.  Teller  205 

T.  Lynn  57 

Scott  V.  Freeland  Go,  G8, 128, 157,  107 
Scriba  v.  Dean  202,  350 

Scribner  v.  Lockwood  278 

Scruggs  V.  Scruggs  2G2 

Seaman  v.  Hicks  80 

Sears  v.  Hanks  308,  309 

r.  Hyer  149 

Sedgwick  t.  Fish  45,  80 

Sellers  ».  Corwin  372 

Sewell  V.  Costigan  4,  11 

Sexton  V.  ]\Ionks  325 

V.  Wlieaton  285 

Scvmore  v.  Milf.  &  Chil.  Tnrn- 

i)ike  Co.  344,  340,  347 

Sluif'er  V.  Bolander  241,  242,  338 

V.  Gates  Co 

Shannon  v.  Jones  324 

Siiaw  V.  Gregoire  SG 

V.  Ho.-idley  75 

V.  SniCt  134,  138,  157 

Sheldon  v.  Newton 

15,  17,  33,  35,  30,  37,  38,  39,  42,  43, 

94,  100,   102,  103,   104,   105,   110, 

111,  134 

■v.  Sobo  335 

V.  Wright  42,  147 

Shclton  ?).  Codnian  190 

«.  Tiffany  17G,  177 

Slie|)herd  v.  IJowe  228 

Sherman  v.  Boyce  253,  341,  339 

Sherry  v.  Denn  41 

V.  Nick  of  the  Woods      224 

Sliields  V.  Ashley  20 

».  Bales  25,210,211 

V.  ]\liltenbergcr  258 

Shirk  ?;.  Wilson         '"       20,243,270 

Slio.m.aker  t.  Ballard  258 

Slirew  V.  Jones  202,  350 

Shriveley  v.  Jones  150 

Sliriver  v.  Lynn  24,  37,  55, 

143,  148,  174,  170,  258 

Shropshire  v.  Pnllen  254 

Sibley  v.  Wells  42 


PAGE. 

Silliman  v.  ]Ming  313 

Silver  v.  Colfee  250 

Simms  v.  Hampton  311 

Simonds  v.  Catliu  24G 

Simpson  v.  Hart         35,  38,  102,  111 

V.  Simpson  227,  23n 

Singletary  v.  Carter  333 

Singleton  v.  Herriott  179 

Sipp  V.  Lawback  Kio 

Sitzman  v.  Pacqucttc  151 

Slade  V.  Van  Vechten  332 

Slicer  v.  Bank  of  Pittsburgh         05 

Small  V.  Cromwell              "  101 

V.  Hodgcn  2G4 

Smiley  •».  Sampson  33,  35 

Smith  V.  Allen  29,  270 

V.  Chew  123 

V.  Cockrill  257 

•v.  Colvin  208 

■V.  Dutton  ;!9 

V.  Greenlee  40 

V.  Hill  228,  229,  232 

V.  Hughes    329,  330,  331,  332 

V.  Ingles  1^0 

T.  Kelly  311 

i\  ]\lcCutchen  259 

i\  I\[oove  84 

■V.  Mormon  228 

V.  Morrison  285 

V.  Jlorse  338 

V.  Piersc  225 

V.  Bace 

®.  Bandall 

V.  Warden 

V.  Winston 

Sneed  v.  Keardon 

Sncvely  v.  Lowe 

Snyder  v.  Stafford 


120,  127 

223.  309 

IGG 

210 

SO,  275 

109,  110 

81,87,225 

St.    Bartholomew's    Church    v. 

Wood  258 

Sohier  v.  Mass.  Genl.  Hos.     39,  104 
South  ».  aiaryland  25 

Southard  v.  Pope 

219,  224,  305,  30G,  307 
Southera  Bank  v.  Humphreys 

4,  37,  55;  01,  171 
Sowards  v.  Pritchett 

9,  52,  55,  57,  59,  183 
Soye  V.  jVlaverick  93 

Speer  v.  Sample  237,  239 

S[)rott  V.  Reid  239,  241 

Statlord  v.  Williams  205 

Stambaugh  r.  Yates  340 

Stanford  Bank  v.  Ferris 

323,  325,  347,  348,  351 
Stansel  v.  Eoberts  85,  2S0 

Stap  V.  Ph.el]is  310 

Stapleton  v.  Longslaff  125 


XXVlll 


INDEX   TO   CASES   aXEI.. 


PAGE. 

Stark  T.  Bronn  40,  43 

Stamp  V.  Irvine  '3"o 

State  V.  Eads  70 

V.  The  Franklin  Bank         348 

'c.  Lais  oG3 

V.  Lake  74 

V.  Lawson  266 

«.  IMelon-i-e  364,  365 

V.  JSIiclKiels  237 

V.  Pool  237 

«.  Romer  3G2 

V.  Salers  341 

V.  Salyers  213,  2o3,  371 

V.  Thackham  328 

Bank  of  Missouri  c.  Tutt     351 

Stead  V.  Course  48 

Steele  V.  Hannah  371 

Stein  I'.  Cliambliss 

228,  236,  248,  314,  315 

Sfetzman  v.  Pacqnette  42 

Stepliens  v.  Barnett  341 

■V.  Den  ni son  246 

V.  ]\IcGrudcr  154,  161,  162 

Stern  v.  Epstin  131 

Stevenson  v.  Marony  203,  204,  293 

Stewart  V.  Anderson  165 

V.  Freeman  278,  281 

11.  Garvin  64 

«.  G:\y  221 

fl.  Hamilton  251 

V.  Houston  235 

V.  Jones  344,  348 

•y.  Mai  shall  289,290 

V.  Nelson  293 

V.  Severance  236,  248,  293 

r.  Stoker  208 

Stiles  V.  Easley  316 

St  ill  man  v.  Youn.<^  43 

Stimson  c.  Meed  66 

V.  R<iss  30,  302 

Stockwell  V.  Byrne  244 

«.  Carpenter  77 

Stoebler  v.  Knerr  200,  274 

Stokes  V.  Middleton  36,  38 

Stone  V.  Gardner  312,  313 

Stoner  ».  Nefl"  88,  374 

Stover  V.  Boswell  219,  254 

Stow  V.  Steele  227,  235,  285 

?;.  Kimball  102,104 

Stratton  «.  Jarvis  180 

Street  v.  Beal  311 

Stroblev.  Smith  165,  166,  167 

Stronii  V.  Caton  154,  158,  159 

Strodse  «.  Dreman  169 

Stuckey  n.  Keefe's  Exrs.  200 

StuydeVant  v.  Hall  82,  205,  225 

Styinets  v.  Brooks  237 

Sufleru  V.  Thompson  '          80 


I'AOE. 

Sullivan  t).  Ilearndon  213 

Summers  v.  Moore 

210,211,228,234,239 
V.  Palmer  264,  265 

V.  Williams 

95,  167,  168,  175 
Susquehanna  Canal  Co.  v.  Bon- 
ham  346 
Swan  V.  Saddlemire                      253 
V.  Wheeler                       97,  99 
Swarts  V.  Steere                        85,  373 
Snazey  v.  Burke     134,  139,  160,  281 
Sweezey  v.  Chandler  309 
Swift  V.  Swift  137 
Swiirart  v.  Harber                         170 
Swink  V.  Thompson                       204 
Swope  V.  Adery      217,  219,  290,  291 
V.  Anderson                       336 
Snortzell  v.  Martin 

27,  28,  219,  336,  337 


T. 


Tabb  V.  Harris 

320 

Tally  V.  Starke 

49,  115 

Tanner  v.  Dean 

175 

Tardy  v.  Mor<^an 

33 

TartJr  v.  Hall 

166 

Taylor  v.  Carryd 

361 

V.  Cornelius 

197 

V.  Gil  lean 

323 

V.  Gilpin 

9,  10,  55 

V.  Junkins 

346,  347 

v.  ]\Iiller 

240,  243 

V.  Porter 

311 

V.  Thompson 

61,  228 

Ten  Eyck  v.  Cassad 

309,  310 

Terrill  v.  Ancliauer 

134,  137 

V.  Thompson 

340 

Tcvis  V.  Doc  201,  240,  242 

Thelusson  v.  Smith  279 

Thomas  v.  Ai'mstrong  344 

V.  Kennedy  279 

V.  Le  Barron  147,  171 

V.  .Marshall  197,  200 

T.  Simpson  197 

Thompson  v.  Chandler  310 

V.  Doe  118 

V.  Ford  331 

V.  McCord  371 

V.  Tilonsxer  168 

'0.  Philips 

26,  27,  228,  258,  284 
V.  Tolmie 

37,52,103,106,126, 

170,    171,    180,   285 

Thorn  v.  Tn,<rram      4,  10,  55,  59,  1 16 

1).  San  Francisco  Slj 


IKDKX   TO    CASKS    CITKI). 


XXIX 


PAOl!. 

Thornton  r.  IMulqiiinne        101,  10:5, 

121,  122,  173,  175,  17(5 

V.  Thornton  273 

Tliorp  V.  McCuUum  50,  134 

Thurston  v.  Xjarnos  242 

V.  Boyd  201 

Tibhsfl.  Allen  131 

Ticko  V.  Ersick  2(i8 

Ticknor  i\  Harris  I'l 

Tillman  c.  Jackson  222 

Tillotson  V.  Cheatham 

215,  21G,  2G1,  2G2,  333 
r.  Millard       354,  355,  358 
Tiukham  v.  Purdy     53,  54,  219,  33G 
Tippett  V.  Walker  348 

Titcomb  t.  Ins.  Co.        34G,  347,  341) 
Titus  h.  Lewis  314 

V.  Mabee  32G,  346 

Todd  -.  Bond  .  37 

V.  Philhowor  25  27 

romlinson  v.  ISIcKay  174 

rongue  V.  Morton  36,  104 

Tooiey  V.  Gridley  G8 

Torrance  v.  Torrance  3G,  91,  95 

Torrev  «•  The  Bank  of  Orleans 

51,  134 
Townsend  v.  Tallaut  57,  58,  120,  173 
Ti'abue  v.  Ingles  G7 

Trenury  v.  Cheever  331 

Trigg  V.  Ross  250 

Tripp  V.  Cook  154,  155,  157 

Troutman  v.  Gowiug  3G3 

True  D.  (;ougdon  340 

V.  Morrill  355 

Trustees  of  Schools  c.  Snell    53,  54 

Tudor  V.  Taylor  303 

Tuecher  v.  Hiatte  311,  312,  314 

Tuler  v.  Wilkinson  224 

Tullies  V.  Brawley  212,  229,  230 

Turcand  v.  Gex  374 

Turner -y.  Ellis  102 

V.  Feudall  370 

Turney  r.  Gates  308 

?..  Turner    101,102,  114,  115 

V.  Young  239,  308 

Tattle  r.  Walton  350 

V.  Wilson  19G 

T-wogood  V.  Franklin  31,  32, 24G.  248 

Tyler  v.  Wilkinson        217,  241,  257 

Tvrell  V.  Eoundtree  208 

Tyree  v.  Williams  200 


U. 


United  States  v.  Duncan 

1G7, 1G8,  207 
V.  Knight 

245,  301,  3G2 
Bank  v.  Halsteacl 

245,  3G1 


Vail  V.  Foster  86 

Vallee  v.  Fleming    5G,  141,  143,  145 
Vance  v.  Readdon  284 

Vancleare  v.  ]\Iillikin  03 

Vandcvere  v.  Baker         4,  7,  CO,  108 
Van  Hook  v.  Throgmorton 

07,  80,  81 
Van  Nostrand  v.  Wright  101 

Van  Rensellear  v.  Kearney  105 

Vansyckle  v.  Richardson        43,  122 
Vaughn  v.  Eli  268 

V.  Holmes  93 

Veazie  v.  Williams  45,  47 

Veeder  v.  Fonda  158 

Voorhees  v.  The  U.  S.  Bank 

27,  01,  103,   104, 

105, 121,  122,  145 

v.  Jackson  174 


320 


Union  Bank  v.  INIcClung 
United  States  ?\  Arredondo 

33,  35,  104.  105. 
120,  171,  180 


123,  126 

209 

4,  9,  57 

321 

143 

249,  278 
1G9 


W. 

Wade  V.  Carpenter 

V.  Watt 

Wagner  v.  Cohen 

V.  McCoy 

Walace  v.  Hale 

Waldo  V.  Russell 

Walden  «.  Gridley 

Walker  v.  The  Comraonwealth    332 

T.  Elston  278,  279 

V.  Green  283 

V.  McKnight  253 

V.  Jlorris  37 

Wallace  v.  Berger  290,  295 

u.  Hale  5'i 

v.  Laurence  283 

V.  Wilson  305,  306 

Walshe  i).  Ringer  242 

Ward  ».  Holl ins  60 

V.  Smith  134 

Ware  v.  Bradford  284,  285 

V.  Cradford  227 

Warfield  v.  Woodward  260 

Warinbold  v.  Schlicting  363 

Warner  v.  learian  Community    374 

Warren  v.  Fish  307,  314 

T.  Icarian  Community    370 

r.  Leland  53,  54 

Wart  V.  Finley  117 


XXX 


IXDEX   TO    CASES   CITED. 


PAGK. 

"Wusliington  r.  Irving 

209 

r,.  JMcCuu 

ghan           91 

Waterman  v.  Ilaskiii 

211,281 

Watei-s  V.  Stewart 

1!)7 

Watkius  V.  Gregorj' 

197 

V.  Ilolniau 

43 

Watson  «.  Rcissig 

197 

294,  303 

V.  Wells 

87 

Watts  V.  Scott 

65 

V.  Waddle 

33 

Waverley  v.  Clements 

18f) 

Wayman  «.  Soutliard 

245 

Weaver  v.   Huntingdon, 

otc. 

R.  R.  Co. 

348 

349,  350 

Webb  V.  Watson 

311 

Webber  t.  Cox 

213 

V.  Kenny 

237 

Weber  v.  Henry 

331 

Webster  i\  Foster 

256 

V.  Hill 

50,  143 

c.  Re  id 

249 

V.  Smith 

228 

Weed  V.  Edmonds 

s 

J,  37,  101 

Weinen  v.  Hcintz 

171 

Weir  V.  Clavton 

232 

Wells  V.  Miller 

123 

Welman  v.  Lawrence 

119 

146,  174 

Welsh  V.  Joy 

275 

Wei  ton  V.  Tizzard 

279 

West  V.  Davis 

154,  155 

V.  Town  send 

19 

West  Branch  R.  R.  Co. 

V.  ^ 

Vrm- 

strong 

350 

Western  e.  Bear  River  & 

Au- 

burn  Co. 

350 

Penn.  R.  P..  C 

o.v. 

John- 

sou         19, 

189, 

197,344, 
340,  348 

Wester velt  v.  Pinckne\ 

329 

Weston  V.  Clark 

252 

Westover  v.  Davis 

157 

Weyand  v.  Tipton 

284 

Whatley  v.  Newsomo 

228 

Wheat  V.  Sexton 

227  228 

Wheatley  v.  Tutt 

''"3G,"49 

Wheatoil  i-.  Sexton  213, 

232,  233,  235, 

239, 

248 

251,  252 

Wheeler  v.  Kennedy  217,  218 

Whipple  V.  Farrar  205 

i\  Foote  323 

White  V.  Denman  85,  280 

V.  Hampton  311 

v.  Jones  319,  324 

V.  Osl)orn  340 

V  Patten  164 

r.  Whitnev  207 

White  Crow  r).  White  King  292 

Whitfield  v.  Hale  125 


196 

33,  43 

234 
180,  181 


Whiting  V.  Porter 
AVhitman  v.  Tyler' 
AVhitucy  v.  Armstrong 

V.  Walsh 
Whittakcr  v.  Sumner 
Wickliff  V.  Robinson 
Wiggins  V.  Chance  201,  203,  204 
Wilcox  v.  May 
Wilder  v.  City  of  Chicago 

V.  Keller 
Wiley  V.  Bridgman 
f.  Budgman 
Wilkerson  v.  Lehvnd 
Wilkinson  v.  Leland 
Willard  v.  Lonstreet 
V.  Norris 
V.  Whipple 
Williaius  V.  Armroyd 

V.  Blair 

V.  Brown 

'c.  Case 

V.  Chapman 

e.  Childress 

v.  Cummins 

V.  Dale 

v.  Harrington  125, 145 

c.  Herr.don 

V.  Holliusworth 

V.  Ives 

V.  Janson 

€.  Jones 

V.  McDonald 

V.  IMorton 

c.  Norris 

'c.  Sweetland 

r.  Tatnal 

V.  Walds 
Williamson  t\  Berry 

9,  10,  15,  44,  45,  40 
55,50,59,  141, 


V.  Leland 
n.  Perkins 
Williard  r.  Nason 
V.  Norris 
v.  Whipple 
Willis  V.  Bucher 
Wilson  t?.  Bergin 
V.  Bigger 
■0.  Conklin 
r.  Corine 
r.  McGee 
■r.  McVeagh 
c.  Iteed 
V  Renter 
t".  ]{oyno]ds 
r.  'i'roup 
V.  Wilson 
Windser  c.  China 


244 

298 

180 

213 

50 

,  293 

372 

33 

97 

220 

370 

170 

140 

338 

79 

285 

182 

101 

318 

15 

76 

110 

30 

159 

,148 

331 

277 

23 

278 

335 

117 

178 

208 

355 

85 

80 

5,  6. 

49, 

217 

104 

210 

91 

31 

228 

138 

115 

160 

309 

284 

228,  251,  285 

284 

340 

78 

45 

227 

103 

311 


4, 


39, 


131, 
35, 


INDEX    TO    CAS3:S    CITKI). 


Wing  V.  I>iir<rcs.s 
Winn  V.  Intriibv 
Winslow  V.  Loiin;^ 
Winstcad  v.  Winslcad 
Winston  v.  Ortley 
Winters  v.  Bufonl  217,  218, 
Wisconsin  v.  'ritus 
Wise  V.  Sliopherd 
Wisner  v.  P'urnliam 
Wolf  T.  Heath 

V.  liobinson 
V.  I'ayne 
13.  Van  Metre 
Wood  v.  Byington 
V.  Chap  in 
«.  Colvin 

233,  235,  2.jr,,  2.j4, 
V.  Mann 

V.  Moreliouse        21G, 
V.  Nason 
V.  Turnpike  Co. 
Woodbury  v.  Parker 
Woodcock  V.  Bei-nett 
Woodrutr  V.  Cliaiiin 
Woods  V.  CliajHU 
■0.  Lane 
r.  Lee 
r.  Alone]  I 
V.  Van  Arsdalc 
Woodward  f.  II ill 

v.  Alurj'v      ;55o. 
Wort  V.  Finly 
Wormslev  v.  Wormsley 

50,  51,  134,  13(),  138, 


r 

AGE, 

275 

322 

343 

27(5 

301 

223, 

294 

205 

207 

355 

239 

43 

258 

219 

05,  90  i 

247 

249 

22t>, 

230, 

284, 

341 

GO 

247 

249 

101 

344, 

34(5 

342 

227 

237 

372 

278 

27 

201 

37 

171 

4 

7,48 

330 

320 

3G3 

305 

177 

160 

227 

TAGE. 

Worth  ini^toii  v.  McRobcrts  108 

Worthy  v.  Johnson  157 

Wortnian  v.  Skinner  98,  99 

Wriglit  V.  Boone  249 

V.  Cantzon         143,  153,  103 

V.  Hollingswcrth  Gl 

V.  Marsh  103 

V.  Phelps  15 

i\  Walbaugh  171 

V.  W^albauiu       122,  172,  209 

■V.  Warner  103 

V.  Yetts  49 

AVroe  v.  Harris        215,  21 G,  333,  334 

Wyman  v.  Campbell  18 

V.  Ilociier  138 


Yarborougli  v.  The  State  Bank   373 
Yate3  V.  Woodruff  152,  15(i 

Yeldell  v.  Stemmons  325 

Yerbye.  Hill  4,123 

Yocom  V.  Bullitt  19s 

Yoder  v.  Stand iford  341 

Young  V.  Alexandria  &  Western 

K.  K.  Co.  344 

T.  Bowver  178 

r.  Dowling  60,  14;> 

V.  Keoffh 

4,  55,  50,  110,  141,  142 

r.  Lorain     128,  101,  100,  108 

V.  Smith  26: 

Youngman  v.  Elinira  &  W.  R.  R. 

Co.  344 


Judicial  and  Execution  Sales. 


JUDICIAL  AND  EXECUTION  SALES. 


PAET  FIRST. 
NATURE   OF  JUDICIAL  AND  OF  EXECUTION   SALES. 


CIIAPTEE    I. 

THE  NATUEE  OF  JUDICIAL  SALES. 

I.    Ok  Judicial  Sales  ix  General. 
n.    JtjBiciAL  Sales  ix  Proceedings  Pltrely  in  rem. 
III.    Judicial   Sales   in   Proceedings  Partly  in  rem,  and   Par^.y 
i:\  iievsonnm. 

I.     Of  Judicial  Sales  in  Gkxkkal. 

§  1.  As  a  judicial  act  is  one  "  supposed  to  be  done  'pendente 
lite  of  some  sort  or  other," ^  so  a  judicial  sale,  is,  in  contem- 
plation of  law,  a  sale  made  ])endente  lite;  a  sale  in  court,  and 
the  court  is  the  vendor. 

§  2.  It  matters  not  to  the  contrary,  that  it  is  made  tlirongli 
the  instrumentality  of  a  master,  commissioner,  or  otlier  func- 
tionary, appointed  thereto  by  the  conrt ;  it  is  not  valid  or 
binding,  and  confers  no  right  to  the  property  sought  to  be 
sold,  nntil  confirmed  by  the  court.  By  such  confirmation,  it 
is  judicially  made  the  act  of  the  court,  and  is  therefore  a 
judicial  sale.  The  master  or  commissioner,  in  conducting  it, 
acts  by  anthoritv  of,  and  as  tlic  instrument  or  agent  of  the 
conrt. 

§3.  In  the  language  of  tlie  court,  in  Bozza  v.  Boice — 
"  the  master  is  tlie  mere  instrument  of  the  court,  acts  nndcr 

1  :Mcaiuu-st  t.  Wait.  3  Burr.  12.59. 


4  JUDICIAL   AND   EXECUTION   SALES. 

its  direetions,  and  is  subject  to  its  control,  *  '"  *  ''^'  and 
his  acts,  under  the  decree  when  reguhir,  are  considered  those 
of  the  chancellor — and  that  the  biddings  are  not  binding  and 
can  not  be  enforced,  until  approved  by  the  court."  ^ 

§  4.  In  Griffith  v.  Foioler^^  the  case  cited  from  IS  Vermont, 
the  learned  Judge  (Eedfield),  speaking  of  sales  in  Admiralty, 
says — "But  these  cases  bear  but  a  slight  analogy  to  sherifl^'s 
sales  in  this  country  or  in  England.  Those  sales  are  strictly 
judicial  sales  and  are  merely  carrying  into  specific  execution 
a  decree  of  the  court  hi  rem,  which  by  universal  consent  binds 
the  whole  world."  And  again,  in  the  same  case,  it  is  said: 
"  It  is  plain,  then,  that  a  sheriff's  sale  is  not  a  judicial  sale." 

§  5.  If  the  sheriff  bo  aj)pointed  by  the  court,  instead  of  a 
master  or  commissioner,  to  conduct  the  sale,  as  in  the  Minne- 
sota R.  It.  Co.  V.  St.  Paul,'^  yet  he  sells  by  virtue  of  the  decree, 
and  not  by  virtue  of  his  office  of  sheriff,  and  the  sale  is  the  sale 
of  the  court  when  confirmed. 

§  G.  In  Williaiiison  v.  Berry,  the  United  States  Supreme 
Court  chai-acterize  a  judicial  sale  as  one  "  made  under  the  pro- 
cess of  a  court  having  competent  authority  to  order  it,  by  an 
officer  legally  appointed  and  commissioned  to  sell." 

.  But  the  court  obviously  refer  here  to  the  sale  in  a  popular 
sense,  or  to  that  part  of  the  transaction  which  consists  of  the 
doings  of  the  master  or  j)erson  conducting  the  sale,  and  not  to 

»30  111.  198;  Andrews  -y.  Scotten,  2  Blaud,  G29;  Williamson  «.  Berry,  8 
How.  547 ;  Southern  Bank  v.  Humphreys,  47  111.  237,  63G ;  Harrison  v.  Har- 
rison, 1  Mtl.  Ch.  Decs.  331;  Mason  v.  Osgood,  G4  N.  C.  467;  Hurst  v.  StuU, 
4Md.  Ch.  Decs.  391;  Sewell  v.  Costigau,  1  Md.  Ch.  Decs.  208;  Moore  «. 
Shultz,  13  Penn.  St.  102;  Vandeverev.  Balcer,2'&.  121,120;  Wagner  ».  Cohen, 
G  Gill.  97 ;  Iglehart  v.  Armigo,  1  Bland,  527 ;  Mullikin  v.  Mullikin,  1  Bland, 
538;  Thorn  «.  Ingram,  25  Ark.  52;  Freeman  x.  Hunt,  3  Dana  (Ky.)>  G21; 
Young  10.  Keogh,  11  111.  G42;  Ayrcs  v.  Baumgartcn,  15  111.  444;  Penn  b. 
Heisey,  19  111.  297;  Rawlings  v.  Bailey,  15  111.  178;  Blossom  v.  R.  R.  Co. 
3  Wall.  207;  Minnesota  R.  R.  Co.  v.  St.  Paul,  3  Wall.  609,  G40;  Griffith  v. 
Fowler,  18  Vt.  394.  In  Yerby  v.  Hill,  16  Texas,  377,  381,  the  court  by 
Wheeler,  .lustice,  say :  "  His  purchase  is  not  complete,  and  no  title  vests 
until  the  action  of  tlie  court,  confirming  the  sale;"  Ilalleck  v.  Guj',  9  Cal. 
181,  195. 

MS  Vt.  394. 
2  Wall.  GOO,  G40. 


Tin:   NATUKE    OF   JUDICTAL   SALES.  5 

that  filial  action  of  tlio  court  -wliicli  alone  confers  validity,  and 
wliicli  terminates  tlie  sale  by  the  judicial  act  of  coniirination. 
For  in  the  same  connection  the  court  saj  "  that  such  sales, 
until  approved  by  the  master  and  confirmed  by  the  court,  j^vc 
no  title  to  a  pnrchascr  of  an  estate  Mdiich  he  maj-  have  bar- 
gained to  bny."  1 

§7.  In  Williamson  v.  Berry,"  the  court  hold  that  the 
approbation  of  the  master  or  person  conducting  the  sale  does 
not  complete  a  title  in  a  purchaser;  but  that  this  is  only  "one 
step  towards  a  purchaser's  getting  a  title." 

This  language  of  the  court  fully  bears  us  out  in  the  assump- 
sion  that  in  describing  a  judicial  sale  as  one  made  under  "the 
process  of  a  court  having  competent  authority  to  order  it,  by 
an  officer  legally  appointed  and  commissioned  to  sell,"  they 
mean  only  that  the  proceedings  up  to  the  final  confirmation 
are  conducted  by  such  officer  until  the  bargain  is  agreed  to, 
when  the  purchaser,  "  before  he  can  get  a  title,"  (in  the  lan- 
guage of  the  court)  "  must  get  a  report  from  the  master  (or 
person  selling)  that  he  approves  the  sale,"  and  "  that  report 
then  becomes  the  basis  of  a  motion  to  the  court,  by  the  pur- 
chaser, that  his  purchase  may  be  confirmed."  "• 

It  is  equally  clear,  that  by  the  term — "  by  an  officer  legally 
appointed  and  commissioned  to  sell,"  is  meant  an  appointment 
and  commission  from  the  court,  and  not  the  ordinary  minis- 
terial officers  of  law  courts,  as  sheriffs,  or  marshals,  in  mere 
virtue  of  their  commission. 

§  8.  True  it  is,  that  the  poAvcrs  of  the  chancellor  is  such 
that  he  may  dispense  with  many  of  the  formulas  attendant 
usually  on  judicial  sales  in  his  court,  but  this  power  of  dis- 
pensation is  not  an  attribute  of  inferior  courts,  acting  under  a 
limited  chancery  power  conferred  by  statute.  As,  for  instance, 
courts  of  probate,  or  others  exercising  probate  jurisdiction  in 
proceedings  for  sale  of  a  decedent's  lands,  or  the  lands  of  a 
^vard.  Such  tribunals  may  not  dispense  with,  but  must  carry 
out  all  such  requirements  as  the  statute  demands  as  indispensa- 

'  8  How.  54G. 
■'  Ibul. 
= Ibid. 


6  JUDICIAL   AXD   EXECUTION   SALES. 

Lie  to  vrJidity,  wliatever  they  may  be.     But  omission  as  to 
siicli  as  arc  directory  only  is  merely  error.  ^ 

§  9.  In  Mason  v.  Osgood  Ad?nV,^  the  Supreme  Court  of 
Xortli  Carolina  hold  the  following  to  be  the  law  in  relation  to 
a  sale  of  lands  by  an  administrator:  "lie  is  a  mere  agent  of 
the  court  to  execute  a  naked  j)Ower,  and  a  purchaser  acquires 
no  right  to  the  land  nntil  the  sale  is  confii-med  and  title  made, 
under  an  order  of  the  court  granting  the  power  of  sale,"  and 
that,  "  if  the  administrator  fails  to  report  the  sale,  the  pur- 
chaser may  aj^ply  to  the  court  by  a  motion  in  the  cause  for  a 
rule  to  compel  such  return,  so  that  the  court  may  confirm  the 
sale  if  it  sees  j)roper.  '••'  '■''  '•'■  In  our  case  the  sale  was  not 
confirmed,  the  j)laintiff  has  no  right  to  the  land,  and  no  claim 
to  equitable  relief." 

The  case  cited  from  JSTorth  Carolina  Avas  of  a  bill  filed  hi 
chancery  to  coerce  a  deed  from  an  administrator  by  one  who 
liad  bid  off  the  land  at  the  sale,  and  who  was  refused  a  con- 
veyance by  the  administrator.  The  chancellor  held  that  the 
remedy  was  by  motion  in  the  same  court  that  ordered  the  sale."' 

§  10.  In  the  case  of  ITaUech  v.  Ginj,'^  the  Supreme  Court 
of  California  use  the  following  language  in  reference  to  the 
nature  of  administrator's  sales  of  lands  in  probate:  "The 
mode  of  sale  is  pointed  out  by  express  statute.  When  sold, 
the  report  of  the  sale  is  made  by  the  administrator  to  the 
court,  and  unless  confirmed  by  order  of  the  court  there  is  no 
binding  sale,  and  no  title  can  pass  to  the  purchaser.  To  be 
valid,  the  sale  must  first  be  ordered  by  the  court,  and  after- 
wards confirmed  by  it.  The  order  for  the  sale  and  the  order 
of  confirmation  are  both  judicial  acts;  and  these  two  concur- 
ring make  the  sale  a  judicial  sale,  and,  therefore,  not  within 
the  statute  of  frauds."  And  again  the  court  say:  "  It  is  true 
that  there  is  a  difference  in  the  mode  of  enforcing  a  sale 
ordered  by  a  court  of  chancery  and  that  of  a  sale  by  order  of 
the  probate  court.     But  this  difiercnce  in  the  mere  mode  docs 

'"Williamson  t\  Bcny,  8  IIow.  54G. 

2  04  X.  C.  4GT,  408 

3  Ibid. 

M)  Cal.  181,195. 


THE    NATUEE    OF    JUDICIAL    SALES.  i 

not  atfcct  the  cliaracter  of  tlic  sale  itself.  Wlien  a  sale  is  made 
under  a  decree  in  chancery  the  bidder  may  he  committed  for 
contempt  if  he  refuses  to  comply  with  his  bid."  ''•  '-^  ■'•  ■'• 
"  If  we  concede  that  the  probate  court  can  not  commit  the 
bidder  for  contempt  when  he  fails  to  comply  with  his  bid,  this 
does  not  change  the  character  of  the  sale."  ^ 

§  11.  In  Ilurd  V.  Siull,"  the  court  say  of  a  decree  of  sale 
for  purchase  money:  "  It  was  a  proceeding  in  rem,  and  by  the 
decree  the  land  was  condemned  to  pay  the  claim  of  the  party 
who  sold  it,  and  in  whom  the  legal  title  still  remains.  Although 
the  court  in  the  execution  of  this  decree  and  others  of  a  like 
nature  employs  a  trustee,  that  officer  is  its  agent,  the  court 
itself  being  the  vendor,  acting  through  the  instrumentality  of 
its  agent.  And  in  Glenn  v.  Clapp,^  the  same  court  charac- 
terize such  sales  as  "  transactions  between  the  court  and  the 
purchaser," 

In  Yandever  v.  Balcer,"^  the  Supreme  Court  of  Pennsylva- 
nia say  of  an  administrator's  sale  of  lands  that  it  is  a  '-judicial 
sale,"  and  has  been  so  ruled  more  than  once. 

§  12.  In  a  legal  sense,  the  sale  is  made  by  the  court  itself 
in  enforcement  of  its  own  orders  and  decrees,  wherein  is 
described  the  property  to  be  sold.  The  person  who  conducts 
the  same  is  merely  the  instrument,  or  means  used  by  the  court 
to  bring  about  such  executory  agreement  as  the  court  closes, 
if  satisfied  therewith,  by  iinal  act  of  confirmation,  wliicli 
makes  the  court  the  vendor.^  Such  sale  is  unlike  a  sheriff -s 
sale  on  ordinary  common  law,  or  statutory  execution,  which  is 
a,  ministerial,  and  not  n  judicial  net;  and  in  making  which 
the  law  regards  the  officer,  and  not  the  court,  as  the  vendor. « 

'  Htilleck  V.  Guy,  9  Cal.  181,  19G. 

^  Hurst  1).  Stull,  4  Md.  Ch.  391,  393;  Iglehart  o.  Aa-miffcr,  1  Bhmd,  527; 
Forcmau  v.  Hunt,  3  Dana,  G23;  Campbell  v.  Johnson,  4  Dana,  18C. 

3  11G.  antlj.  1,  8. 

*  18  Penn.  St.  12G. 

5  lb.  and  Foreman  v.  Hunt,  3  Dana,  G22;  Campbell  v.  Jolinson,  4  Duua. 
186;  Armors;.  Cochrane,  GG  Pcun.  St.  308.  In  the  latter  case  the  court 
characterize  the  person  conducting  the  sale  as  "the  mere  organ  of  {\ie 
court,  in  making  the  sale."    Bozza  v.  Rowe,  30  111.  198. 

«  Gowan  v.  Jones,  10  S.  and  M.  104;  Griffith  v.  Fowler,  18  Yt.  394.     "  On 


b  .TLDIflAL    AM)    i:Xi;(UI!<  >.\    SALKS. 

The  decree  for  a  sale,  tlioiigli  so  far  linal  that  an  ai)peal  v,-ill  lie, 
is  not  linal  but  interlocutory,  in  such  other  respects,  as  it  does  not 
reach,  contemplated  by  the  proceeding,  Avhich  are  only  attained 

coiisklering  Uic  nature  of  sales  uniler  authority  of  the  Court  of  Chancery, 
tlio  lirst  inquiry  Avhich  suggests  itself  is,  Avho  are  the  real  parties  to  the 
contract  V  This  very  idea  of  a  contract  implies  that  there  is  one  party  able 
and  willing  to  contract  and  another  to  contract  with.  It  implies  a  perfect 
capacity  and  free  will,  in  each  of  the  parties  to  the  agreement.  To  a  con- 
tract of  sale,  made  under  a  decree  of  this  court,  neither  of  the  litigatini;- 
parties  can  be  considered  as  the  vendor;  although  they,  with  others,  sucli 
as  creditors,  who  may  be  allowed  to  come  in  afterwards,  may  be  very 
materially  interested  in  the  sale.  The  plaintiff  can  not  be  considered  as 
tlie  vendor;  because,  oftcuer  than  otherwise,  he  has  no  title,  always  states 
his  inability  to  sell,  and  prays  the  court  to  decree  that  a  sale  be  made. 

"The  defendant  can  not  be  the  vendor;  because  he  always  positively 
refuses  to  part  with  his  property,  unless  forced,  or  sanctioned  in  doing  so 
by  the  power  of  the  court.  If,  then,  neither  of  the  litigating  parties  can 
be  seperately  deemed  to  be  tlie  vendor,  it  is  clear  that  they  can  not  botli 
together  be  so  considered. 

"But  such  sales  arc  always  made  by  an  agent;  in  England,  by  a  master; 
in  this  State,  by  a  trustee.  Private  contracts  may  be  made  and  executed 
in  person  or  by  attorney;  but  the  attorney  is  never  considered  as  one  of 
the  contracting  parties — he  exercises  no  will  or  povrer  of  his  own — he  is 
merely  the  medium,  or  conduit,  through  which  the  will  of  the  contracting 
l)arty  is  expressed.  The  master  or  trustee  is  the  mere  attorney  of  the 
court,  acting  under  a  specially  delegated  authority.  And,  in  no  case,  is  a 
master  or  trustee  authorized  to  do  more  than  to  accept  an  offer  or  proposal 
to  contract,  which  is  of  no  sort  of  validity  unless  it  be  accepted,  ratified 
and  confirmed  by  the  court.  It  is  the  court  itself,  for  the  lencfit  of  all  inter- 
ested, therefore,  wJio  is  tlie  vendor  in  such  cases? 

"But  it  maybe  said,  if  the  court  be  the  vendor  in  sales  made  by  its 
trustee,  would  it  not  follow,  for  the  same  reasons,  that  a  court  of  common 
law  must  be  considered  as  the  vendor  in  sales  made  under  its  writ  of  fieri 
facias,  by  the  sheriff?  The  cases  are  essentially  different.  Tlie  Vv-rit  of 
fieri  facias  is  a  general  authority  or  command  to  the  sheriff"  to  make  so 
much  money  by  sale  from  the  personal  estate  of  the  defendant.  By  this 
writ  the  excHiutive  officer  of  the  court  is  commissioned  to  seize  the  whole, 
any  part,  or  so  much  of  the  defendant's  personal  estate  as  may  be  neces- 
sary to  raise  the  specified  sum  of  monej'.  No  particular  articles  of 
]iroperty  arc  ever  designated.  By  statute,  this  power,  given  by  the  com- 
mon law  writ  over  personal  estate,  has  been  extended  over  real  estate. 
And  the  same  writ,  and  nearly  tlie  same  principles  of  law,  now  apply  to 
Ijoth  species  of  property. 

"The  real  or  personal  estate  with  which  the  Court  of  Chancery  deals  is, 
however,  always  in  one  form  or  other  distincth' specified  in  tlie  proceo*!- 


THE    NATLTvE    OF    JUDICIAL    SAI.ES.  V 

by  coiifirraatioii,  thereby  giving  finality  to  the  proceedings. 
The  sale  is  not  made  by  authority  of  the  person  in  charge  of 
it,  but  by  authority  and  under  control  of  the  court,  "which 
prescribes,  or  ought  to  prescribe  the  time,  manner  and  condi- 
tions of  the  sale."  ^ 

§13.  AVlien  an  acceptable  bidder  is  found,  and  an  agree- 
ment as  to  terms  is  attained,  then  report  thereof  is  made  to  the 
(•ourt,  and  the  court  coniirms  it  or  not,  at  discretion.- 

Before  such  confirmation  the  j^urchase  is  so  incomplete  that 
a  loss  by  fire  falls  on  the  vendor  or  owner,  though  it  occur  after 
acceptance  of  the  bidding  and  after  report  of  the  sale.^ 

ings ;  and  the  sale  is  made  only  because  the  court  is  asked  to  have  it  made 
1o  accomplish  the  objects  of  the  suit.  In  the  proceediuss  at  common  law, 
from  the  commencement  to  the  Jieri  facias,  no  property  is  designated.  At 
common  law,  the  terms  and  manner  of  sale  are  regulated  by  law ;  in 
chancery,  they  are  regulated  by  the  court.  At  common  law  if  the  sheriff, 
in  seizing  the  property  and  making  the  sale,  conforms  to  the  established 
regulations  applicable  to  all  cases,  (and  he  can  sell  in  no  other  manner), 
the  sale  is  final  and  valid  as  soon  as  it  is  made.  But  in  chanceiy  the  sale 
is,  in  no  case,  binding  and  conclusive,  until  it  has  been  expressly  approved 
and  ratified  by  the  court.  If  it  be  made  in  a  manner  wholly  different  from 
that  prescribed  by  the  court,  it  may  yet""  be  sanctioned ;  or,  if  it  be  made 
in  all  respects  conformable  to  directions,  it  may  still  be  rejected.  And 
hence,  it  is  obvious  that  in  one  case  it  is  the  Court  of  Chancery  who  is  the 
real  vendor,  and  in  the  other  the  sheriff,  or  executive  ofticer  of  the  court. 

"In  an  English  case,  which  arose  on  a  sale  under  the  authority  of  the 
Court  of  Chancery,  decided  in  the  year  1721,  in  which  the  question  was, 
whether  the  purchaser  should  be  compelled  to  complete  his  purchase  or 
not,  the  matter  is  spoken  of  as  one  perfectly  settled.  '  Upon  a  contract 
betwixt  party  and  party,'  says  the  chancellor,  '  the  contractor  would  not 
be  decreed  to  pay  an  imreasonable  price  for  an  estate;  so  neither  ought  the 
court  to  bo,  partial  to  itself,  and  to  do  more  upon  a  contract  Trmde  mth  itself, 
or  carry  that  farther,  than  it  would  a  contract  betwixt  party  and  party. 
On  the  other  hand,  the  court  might  be  said  to  have  rather  a  greater  power 
over  a  contract  made  with  itself  than  with  any  other.'  And  in  other  cases 
of  recent  date,  when  the  subject  has  been  brought  into  view,  the  court  has, 
ill  like  manner,  been  spoken  of  and  considered  as  the  vendor."  Andrews 
r.  Scotten,  2  Bland,  629. 

'  Moore  v.  Shultz,  13  Penn.  St.  102;  Coffee  v.  Coffee,  10  111.  141 ;  Uarlan 
r.  ]\Ierrill,3  Dana,  181 ;  Sowards  r.  Pritcliett,  37  111.  517. 

*  Williamson  v.  Bcrrj^  8  How.  547 ;  Harrison  v.  Harrison,  1  Md.  Ch.  331 ; 
:\Ioore  v.  Shultz,  13  Penn.  St.  502;  Taylor  v.  Gilpin,  3  Met.  (Ky.)  544; 
Sowards  v.  Pritcliett,  37  111.  517. 

'  Wagner  v.  Cohen,  G  Gill.  DO,  102  ;  E.rpaHe  Minor,  11  Vcs.  550. 


10  JUDICIAL   AND    EXECrXIOX    SALES. 

§14.  In  Harrison  v.  Jlarrison^^  tlie  court  affirms  tlie 
doctrine  of  Andrews  v.  Bcottoi,  and  say  it  is  the  well  under- 
stood law,  "  that  in  sales  made  under  authority  of  decrees  in 
chancery,  the  court  is  the  vendor,  the  trustee  being  the  mere 
agent  or  attorney  of  the  court,  under  a  sjDCcial,  delegated 
authority,  and  the  true  character  of  such  a  sale  is  that  it  is  a 
transaction  between  the  court  and  the  purchaser;  and  a  private 
sale,  as  well  as  a  public  sale,  may  be  made  if  the  court  deems 
it  advantageous. 

§  15.  In  the  case  of  Jlarrison  v.  Harrison,-  the  court 
further  say:  "The  differences  are  so  many  and  material,"  be- 
tween sales  by  a  trustee  in  chancery  and  sales  on  execution  by 
a  sheriff,  "  that  it  is  impossible  with  safety  to  apply  any  one 
principle  to  them  both.  But  the  vital  difference  perhaps  with 
reference  to  the  question  now  under  consideration  is,  that  the 
sheriff's  sale,  if  made  conformably  to  law,  is  final  and  valid, 
and  passes  the  title;  whereas,  chancery  sales,  the  court  being 
the  vendor,  are  not  binding  and  conclnsive,  until  approved  and 
ratified  by  the  court." 

And  such,  too,  is  tlie  current  of  authorities.  The  court 
affirms  the  sale  or  not,  at  its  discretion,  and  until  affirmed,  the 
supposed  sale  is  no  sale,  and  confers  no  rights. ^ 

But  if  the  purchaser  take  and  keep  j)ossession  it  may  become 
ratified  and  valid  by  lapse  of  time.^ 

It  is  not  the  sale  of  the  officer  or  person  charged  with  it,  for 
apart  from  the  conrt  he  has  no  power  to  sell.  But  when  con- 
firmed, it  is  "the  sale  of  the  court.  ^ 

'  1  Mtl.  Ch.  Dec.  032,  333.  "These  sales  are  less  expensive  than  Avlieu 
made  on  executions ;  more  time  is  allowed  to  make  them ;  the  discretion 
of  the  court  is  exercised  as  to  time,  manner,  and  terms  of  sale;  -whereas, 
on  sales  Ly  a  slieriff,  all  is  l)j' compulsion,  and  no  credit  is  allowed ;  he 
can  not  offer  one  entire  piece  of  property  for  sale  in  parcels;  the  adminis- 
trator can  divide  and  sell  as  best  subserves  the  interest  of  the  heirs,  and 
sell  only  so  much  as  tlie  emergency  of  the  case  requires."  Griguon's 
Lessee  v.  Astor,  3  How.  343, 344. 

2 1  Md.  Ch.  Dec.  335. 

=■  Taylor  i;.  Gilpin,  3  Met.  (Ky.)  544;  Williamson  v.  Berrj-,  8  How.  547; 
Jlason  «.  Osgood,  64  N.  C.  404;  Thorn  t.  Ingram,  25  Ark.  52. 

*  Gowan  «.  Jones,  10  S.  and  M.  1G4. 

5  lb.  and  preceeding  cases  cited. 


THE   NATURE    OF   JUDICIAL   SALES.  11 

§  IG.  In  Sewell  v.  Costujaiiy^  tlic  s;uue  doctrine  is  Iiolden. 
Tlie  court  say:  "In  fact,  the  sale  made  Lj  liim(tlie  trustee)  is 
the  sale  of  the  court,  he  being  the  mere  instrument  or  agent, 
by  whose  liands  the  court  acts/' — "■'  It  is  the  sale  of  the  court, 
and  not  his  sale." 

§17.  1\\  Foreman  v.  JIurd,"  the  Supreme  Court  of  Ken- 
tucky draw  the  distinction  between  sheriif's  sales  at  law  and 
judicial  sales  as  follows:  "Sales  under  execution  are  made  by 
an  officer  of  the  law,  who  is  required  by  law,  as  well  for  the 
benefit  of  jDlaintiffs  and  defendants  as  others  who  may  bo 
injured  by  his  official  defalcations,  to  give  bond  and  good 
security  for  the  faithful  discharge  of  his  duties,"  and  remark 
that  "  the  law  is  the  only  guide  of  the  sheriff,"  that  his  sales 
are  perfect  and  complete,  and  that  the  title  passes  to  the  pur- 
chasers without  confirmation  (ordinarily)  of  the  court;  but  that 
"a  commissioner  appointed  by  the  chancellor  to  sell  is  the 
mere  ministerial  servant  and  agent  of  the  chancellor."  That 
he  has  no  guide  but  his  instructions  in  the  decree;  gives  no 
1)ond;  must  report  to  the  court;  and  that  a  sale,  that  is,  an 
agreement  to  sell,  made  by  liim  is  not  valid  "  until  it  is  sanc- 
tioned by  the  chancellor."  It  is  in  operati^'e  until  confirmed 
by  the  court.  In  Jjiissy  v.  Ilard'ui,^  it  is  liolden  that  "the 
liighest  bidder  at  sales  under  decrees  does  not,  like  a  bidder  at 
sheriff's  sales  under  execution,  acf^^uirG  any  independent  right 
to  have  the  purchase  completed;  but  is  nothing  more  than  a 
])refcrred  bidder,  or  proposer  for  the  purchase,  subject  to  con- 
firmation by  the  chancellor." 

§  18.  We  may  add  that  a  judicial  sale  is  made  j?(3;2'(r7(??2z;d  lite; 
whereas,  an  execution  sale  is  made  after  litigation  in  the  case 
is  ended;  for,  as  we  have  before  seen,  a  judicial  act  is  some- 
thing done  during  the  pendency  of  a  suit.'^     The  suit  docs 

'1  Md.  Ch.  Dec.  208,  209. 

=  3  Dana,  G21. 

==  2  B.  Mon.  407. 

*  Midliurst  v.  Waite,  3  Burr.  1262.  In  Girard  Life  Ins.  Co.  v.  Farmers' 
and  Mechanics'  Bank,  57  Penn.  St.  397,  the  court,  in  discriminating  between 
an  order  of  sale  and  a  writ  of  execution,  uses  tlic  following  language : 
"The  word  execution  has  always  been  understood  as  meaning  a  icrit,  to 


12  JUDICIAL   A2\D   EXECUTION    SAEES, 

not  end  witli  tlic  decree  of  sale;  tlie  proceeding  still  continues 
until  final  confirmation.  So,  tlic  converse  of  the  principle 
follows,  that  -what  is  done  in  p^us  after  litigation  is  ended,  or 
after  the  cause  is  finally  disposed  of,  if  there  were  no  adverse 
litigation,  is  not  done  judicially,  and  is  not  a  judicial  act,  but 
is  executive  or  else  is  ministerial. 

§10.  Another  remarkable  distinction  may  here  be  noticed 
lictwixt  judicial  and  executive  sales.  In  some  decrees  for 
judicial  sales  the  primary  object  of  the  order  or  decree  is  to 
feoll  the  property,  and  in  such  cases  tlie  sale  can  not  be  pre- 
vented, excej^t  by  judicial  interference.  But  the  writ  of  execu- 
tion, on  judgments  at  law,  or  when  issued  on  money  decrees  or 
orders  to  pay  money,  commands  the  officer  to  levy  the  money 
of  the  property  of  the  debtor,  and  though  a  sale  is  the  conse- 
quence of  such  levy  if  the  money  be  not  paid,  yet  the  primary 
object  of  the  Avrit  is  to  get  the  money,  and  therefore  its  pay- 
ment to  the  officer  holding  the  writ  by  the  debtor  prevents  a 
sale. 

§  20.  So  likewise  in  some  proceedings  and  decrees  for 
judicial  sales,  as  in  mortgage  foreclosures,  decrees  to  enforce 
statutary  liens,  vendor's  liens,  and  such  other  orders  of  sale  as 
arc  merely  designed  to  enforce  payment  of  a  sum  of  money; 
as  tlic  primary  object  of  the  proceedings  is  to  make  the  money, 
tlie  debtor  may  put  an  end  to  the  proceedings  and  prevent  the 
sale  by  paying  the  amount. 

§21.  In  Griffith  v.  Bogart,^  Justice  Geiet.  speaks  of  an 
execution  sale  as  a  judicial  sale.  But  by  reference  to  that 
case  it  will  be  seen  that  it  emanated  from  Missouri,  where  by 
the  statute  law  execution  sales  at  law  are  reportable  to  the 
court  for  confirmation.  That  the  sale  in  question  had  been  so 
reported  and  confirmed,  as  is  shown  by  the  learned  justice; 
wherefore  he  says,  '•  the  deed  was  acknowledged  in  open  court 
according  to  law.  At  this  time,  all  parties  interested  could 
and  would  have  been  lieard,  to  allege  any  irregularities  in  the 
proceedings  tliat  would  justify  the  court  in  setting  it  aside. 

irivc  possession  of  a  tliiii,!;-  recovered  by  judgment  ordccrcc.    It  is  clearly 
distiiifTuishablc  from  a  mere  order  of  sale." 
'  18  How.  u8,  101. 


THE    NATURE    OF   JUDICIAL    SAUiS.  13 

*  '"  ''■'•'  ■"  T)\\t  when  objections  are  waived  by  tliem,  and  tlic 
judicial  sale  founded  on  these  proceedings  is  confirmed  by  the 
court,  it  would  be  injurious  to  the  peace  of  the  community  and 
the  security  of  titles  to  permit  such  objections  to  the  title  to 
be  heard  in  a  collateral  action."  Here  it  is  the  judicial  act  of 
confirmation  that  gives  judicial  character  to  the  sale.  Such, 
too,  is  the  case  in  Pennsylvania,  and  some  other  States. 

§22.  Justice  Stoky  puts  the  distinction  betwixt  judicial 
and  ministerial  or  execution  sales,  seemingly,  upon  the  same 
ground.  In  Arnold  v.  Smith,^  which  arose  in  reference  to 
an  administrator's  sale  of  lands  in  probate  in  Rhode  Island,  the 
learned  justice  considers  the  sale  within  the  statute  of  frauds, 
for  that  it  is  not  a  judicial  sale,  in  as  much  as  such  sales  in 
Rhode  Island  are  not  required  by  law  to  be  confirmed  by  the 
court. 

§  23.  And  we  think  we  will  be  generally  borne  out  in  the 
suffffestion  that  whenever  execution  sales  are  characterized  fis 
judicial,  they  either  have  to  be  confirmed  by  law,  or  else  the 
expression  has  been  casually  made.  The  characterizing  them 
:is  such  very  recently  in  head  notes  and  indexes  of  books,  of 
reports,  is  a  mere  matter  of  taste  of  the  reporter,  and  of  no 
authority. 

§  24.  Though  there  be  judicial  acts  from  which  no  appeal 
will  lie;  yet,  it  is  a  general  principle  that  appeals  or  error  may 
be  taken  only  from  judicial  acts  and  decisions.  Tested  by 
this  general  princii')le,  sales  under  orders  and  decrees,  by  j^er- 
son  designated  by  the  court,  are  eminently  judicial. 

§  25.  jSTot  only  the  decree  or  order  of  sale  itself,  but  also 
the  order  of  confirmation,  wliich  is  the  very  essence  of  the  sale, 
may  be  reviewed  in  an  appellate  court.  The  one  conferring 
the  power  to  sell ;  the  other  giving  validity  to  the  sale  when 
agreed  upon.  For,  though  the  order  of  confirmation  is  ordi- 
narily a  matter  for  the  discretion  of  the  court,  yet  it  is  such  a 
reasonable  and  wholesome  discretion  that  if  abused  or  unwisely 
exercised  the  order  may  be  appealed  from.  The  New  1  ork 
Court  of  Appeals  (Selden,  Justice),  in  treating  of  the  term 

'  5  Z\raso:i  C.  C.  414,  -420,  42G. 


1-i  oUDICIAL   AXD   EXECUTION    SALES. 

judicial  uses  tlie  following  language:  "Tlio  lines  Lctwccn 
the  various  departments  are  not  and  can  not  well  be  very  pre- 
cisely defined,  and  there  are  many  duties  which  may  be  with 
ccpial  propriety  referred  to  either.  Duties  of  this  class,  and 
they  are  very  numerous,  necessarily  take  their  character  from 
tlie  dei^artments  to  which  they  are  respectively  assigned.  The 
same  power  which,  when  exercised  by  one  class  of  officers  not 
connected  with  the  judiciary,  would  be  regarded  and  treated 
as  purely  administrative,  becomes  at  once  judicial  when  exer- 
cised by  a  court  of  justice.  This  is  shown  by  the  definitions 
imiformly  given  of  the  word  judicial.  "Webster  defines  it  thus : 
'Pertaining  to  courts  of  justice,  as  judicial  power;'  and  again: 
'  Proceeding  from  a  court  of  justice,  as  a  judicial  determina- 
tion,' Keferring  then  to  Bouvier,  the  learned  Justice  gives 
his  definition  as,  '  Belonging  to  or  eminating  from  a  judge  as 
such,  the  authority  vested  in  judges,'  The  court  then  add 
that  '  "Wliatever  emanates  from  a  judge  as  such,  or  proceeds 
from  a  court  of  justice,  is,  according  to  these  authorities, 
judicial."  ^ 

§  2G.  But  from  tlie  sherilTs  sale,  as  such,  made  on  execu- 
tion, no  appeal  lies.  lie  makes  no  judicial  decision.  It 
matters  not  to  the  contrary,  that  i\\c  ^xrit  oi  fieri  facias  is  a 
judicial  writ."  The  sheriff  who  is  to  execute  it  is  a  minis- 
terial, or  executive,  ofiicer,  and  his  acts  in  that  respect  are  but 
ministerial.  Xo  appeal  lies  therefrom.  Those  acts  and  the 
sale  growing  out  of  the  same,  can  only  be  questioned  or  assailed 
by  some  direct  proceeding,  except  in  those  courts  where  the 
practice  is  to  report  the  same  for  confirmation  by  the  court, 
Avhicli  are  an  exception  to  the  general  rule.  In  such  cases, 
the  sale  is  open  to  attack  on  the  motion  in  court  to  confirm. 
And  although  when  affirmed,  they  thereby  partake  of  the 
character  of  judicial  sales,  notwithstanding  their  being  made 
by  the  ministerial  officer  and  on  execution,  yet  these  are  excep- 
tional cases  and  give  no  judicial  character  to  ordinary  sales  on 
execution,  which  stand  or  fall  on  their  own  validity  and  in 
which  no  confirmation  is  required. 

'  Matter  of  Heniy  Hooper,  23  N.  Y.  G7,  82. 

«  3  Bac.  Abt.  Title,  Judicial  writs  which  He  after  judgment,  G98. 


T[IK    NATURE    OF   JUDICIAL    SALES.  lo 

Judicial  sales  occur  in  probate  and  in  chancery  proceedings 
for  partition  of  real  estate,  where  a  division  of  the  property 
cannot  be  made  in  kind.^  In  guardian  and  administration 
sales  of  land  in  probate. ^  In  mortgage  foreclosures  by 
equitable  jjroceedings;  proceedings  to  enforce  vendors' liens  ;3 
in  statutoi-y  liens  for  street  improvements  made  by  municipal 
corporations;*  and  -sve  may  add,  whenever  a  right  or  p roceed- 
ing  is  enforced,  by  a  sale  made  by  a  judicial  order  or  decree, 
under  direction  of  the  court  as  contradistinguished  from  sales 
on  execution. 

AVheii  the  statute  or  local  practice  do  not  dispense  with 
confirmation  of  such  sales,  the  ofhcer,  commissioner,  or  person 
conducting  them,  acts  as  the  instrument  merely  of  the  court, 
without  authority  to  bind  creditors,  debtors,  or  heirs,  simply 
by  his  o\\Ti  act,  who  are  bound  only  by  the  action  of  the  court, 
in  final  confirmation,  the  court  alone  having  power  to  repre- 
sent and  bind  them.-'' 

§  27.  In  a  certain  classes  of  cases  such  sales,  ndien  per- 
fected, are  said  to  confer  ownership  on  the  purchaser,  by  a 
right  paramount  to  that  of  the  heir,  as  owner."  Thus  in 
administration  sales  of  real  estate  to  pay  debts  of  decedents, 
the  court  ordering  them  enforces  a  lien  in  law,  ajits  in  the 
exercise  of  a  right  paramount  to  that  of  the  heirs.  Witliout 
law  there  are  no  heirs.  Heirship  is  not  a  natural  light.  It 
is  created  by  law,  is  different  in  different  States,  and  iv.  changed 

'  Sackot  i\  Twining,  G  Harris,  202;  Hilton  v.  Williams,  35  Ala.  503; 
Girard  Life  Ins.  Co.  t\Tlie  Farmers'  &  Mechanics'  Bank,  57  Pern.  St.  388; 
Williams  v.  Case,  3  Bland,  215;  Allen  v.  Gault,  3  Casey,  473. 

^  Grignon's  Lessee  v.  Astor,  2  How.  338 ;  Moore  v.  Shultz,  13  Penu.  St.  98. 

2  Kershaw  r.  Thompson,  4  Johns.  Ch.  610. 

*  Ohio  Life  &  Trust  Co.  v.  Gordon,  10  Ohio  (N.  S,)  557,  505;  Gould  v. 
Garrison,  48  111.  258 ;  Dillon,  Municipal  Corporations,  Sec.  660 ;  Mcln- 
erry  v.  Read,  23  low-a,'  410. 

*  Moore  v.  Shultz,  13  Penn.  St.  102.  (The  court  have  this  power  by  law, 
subject  to  which  rights  of  property  are  holden).  Williamson  i:  Berry,  8 
How.  547;  Rawlings  v.  Bailej',  15  111.  178;  Ajtcs  v.  Baumgarteu,  and 
Wright  V.  Phelps,  15  111.  444. 

«  Griguon's  Lessee  v.  Astor,  2  How.  338;  Bofils  v.  Fisher,  3  Rich.  Eq.  1 ; 
Sheldon  v.  Newton,  3  Ohio  (N.  S.)  494,  504;  McPherson  v.  CuudifF,  11  S.  & 
U.  420. 


IG  JUDICIAL    AXn   ICXICCUTION   S.VLES. 

or  varied  from  time  to  time.  The  same  law-making  power 
that  creates  it,  vests  the  ])roperty  in  the  heir  subject  lirst  to 
the  prior  right  of  creditors  of  tlie  decedent,  if  there  be  not 
other  sufficient  assets,  to  liave  it  sold  for  the  payment  of  their 
debts,  and  also  gives  the  court  the  paramount  power  of  ascer- 
taining the  debts  and  selling  the  property  to  i>ay  the  same; 
30,  also,  for  purposes  of  making  partition. 

§  28.  In  Myer  o).  IfcDougal,^  this  paramount  lien  of 
creditors  upon  the  lands  of  a  deceased  debtor,  or  other  his 
estate,  for  payment  of  their  debts,  is  fully  recognized  by 
Walkek,  Justice,  in  the  following  terms:  "The  devise  of  the 
land  to  Elizabeth  ITayden,  by  Robert  Ilayden,  was  subject  to 
the  payment  of  his  debts;  and  the  devisee  and  her  grantees 
took  and  held  the  premises  subject  to  such  indebtedness,  which 
operated  as  a  lien  upon  them,  and  the  creditors  may  enforce 
such  lien  by  administration,  from  heirs  or  devisees." 

The  court  here  cite  McCoy  v.  Morroio'^  as  to  the  same 
clTect,  and  to  the  point  that  the  lien  must  be  enforced  within 
a  reasonable  time. 

§  29.  A  decree  of  sale,  to  effect  a  partition  of  interests,  or 
to  pay  debts  of  a  decedent,  virtually  takes  possession  of  the 
estate,  and  vests  it  in  the  court,  for  the  purposes  of  distribu- 
tion. ^  In  the  language  of  the  court  in  William^ s  C ase  yx^t 
cited,  "  a  decree  for  a  sale  to  effect  a  partition,  or  to  pay  debts, 
virtually  takes  possession  ot  the  estate,  and  vests  it  in  the 
court  for  the  purposes  of  distribution." 

§  30.  Judicial  sales  properly  speaking  occur  only  in  pro- 
ceedings wholy  or  partly  in  rcm.^  In  this  respect,  they  are 
widely  contradistinguished  from  execution  sales,  at  law,  where 
the  judgment  is  exclusively  in  'personam^  and  wherein  the 
pale  is  that  of  the  officer  and  not  that  of  the  court. 

§  31.     Some  judicial  sales  are  in  proceedings  purely  ^;i  rem. 

'  Myers  %.  McDou^al,  47  111.  278,  280;  IVIcCoy  r.  Morrow,  11  111.  519. 

-  McCoy  «.  Morrow,  18  111.  519. 

'William's  Case,  3  Bland.  215;  Beauregard  v.  New  Orleans,  18  How. 
497.  503. 

*  Grignon's  Lessee  v.  Astor,  2  How.  838;  Beauregard  v.  New  Orleans,  IS 
How  497,  502,  503;  Florintine  v.  Barton,  2  Wall.  210,  21G. 


THE    NATURE    OF   JUDICIAL   SALES.  17 

Others  are  in  proceedings  partly  in  rem  and  pai'tly  in  per- 
sonam. In  either  case,  the  order,  or  decree  of  sale,  is  in  rem; 
it  is  against  the  property  itself. 

II.     JuDicLVL  Salics  in  Peoceedlngs  Pltjely  1^  Ee^i. 

§  32.  Proceedings  purely  in  rem  are  where  the  court  in  its 
plenary  power  of  the  law,  based  on  legislative  will  and  the 
authority  of  the  government,  lays  hold  of  and  acts  directly 
on  the  property  itself,  and  transfers  its  ownership  to  the  pur- 
chaser, by  a  title  paramount  to  that  of  the  owner,  and  "  with- 
out regard  to  tlie  persons  who  may  have  an  interest  in  it."^ 
Such  proceedings  are  not  by  virtue  of  any  contract  of  the 
owner,  express  or  imjjlied,  but  "  are  analogous  to  proceedings 
in  admiralty,"  and  "all  the  world  are  parties."^  "The  estate 
passes  to  the  purchaser  by  operation  of  law."^ 

§  33.  The  purchaser,  it  is  said,  claims  not  their  title,  but 
one  paramount.*  The  paramount  right  of  the  government 
to  seize  or  lay  hold  of  the  property  of  decedents  and  distribute 
it  in  kind,  or  else,  if  that  be  impracticable  by  way  of  parti- 
tion, tlien  to  sell  the  same  and  distribute  the  j^roceeds.  Or  by 
a  still  more  stringent  measure,  if  need  be,  to  sell  the  same  for 
payment  of  the  ancestor's  debts  and  distribute  the  proceeds  to 
the  extent  of  the  debts  among  the  creditors,  to  satisfy  claims 
of  a  higher  or  paramount  grade  in  law,  than  the  claim  of  the 
heirs.  In  the  case  cited  from  Alabama,  Satcher  v.  Satcher^^ 
the  Supreme  Court  of  that  State  use  the  following  language  in 
reference  to  sales  in  probate:  "It  is  the  settled  doctrine  in 
the  decisions  of  this  court,  that  the  proceeding   before  the 

*  Grignon's  Lessee  v.  Astor,  3  How.  338;  Eofil  t.  Fisher,  3  Rich.  Eq.  1 ; 
Sheklon  v.  Newton,  3  Ohio  (N.  S.)  494;  Beauregard  -y.  New  Orleans,  18 
How.  497,  503 ;  Satcher  i;.  Satcher,  41  Ahi.  2G ;  Florintine  v.  Barton,  2  Wall. 
21G. 

-  Ibid. 

5  McPherson  c.  Cunliff,  11  S.  &  B.  428:  Grignon's  Lessee  t.  Astor,  2  How. 
338;  3Bouvier,  131,132. 

■1  Moore  v.  Shultz,  13  Pcnn.  St.  102;  Grignon's  Lessee  vi.  Astor,  2  How. 
319 ;  Beauregard  i).  New  Orleans,  18  How.  502. 

» 41  Ala.  26. 
2 


18  JUDICIAL   AND   EXECUTION    SALES. 

probate  court,  for  the  sale  of  lands  of  a  decedent,  is  in  rem; 
that  the  jurisdiction  of  the  court  attaches  upon  a  petition  set- 
ting forth  a  statutory  ground  of  sale ;  and  that  the  order  of  sale 
is  not  void,  although  the  proceedings  may  abound  in  errors,  if 
the  petition  contain  the  above  stated  jurisdictional  allega- 
tions." 

And  in  the  same  case,  the  doctrine  is  still  more  definitely 
asserted  so  as  to  exj>ressly  negative  the  necessity  of  notice  or 
jurisdiction  of  the  persons  in  interest,  and  say  that  "  The 
proceedings  in  the  probate  court  for  the  sale  of  decedent's 
lands  is  held,  by  a  long  chain  of  decisions  not  now  to  be  ques- 
tioned, to  be  in  rem;  and  therefore  the  validity  of  the  orders 
can  never  depend  upon  the  fact  that  the  court  has  acquired 
jurisdiction  of  the  persons  of  the  parties.  The  requisition 
of  notice  is  just  as  plainly  and  as  positively  made  in  the  act  of 
1822,  as  as  under  any  subsequent  law.  Under  the  act  of  1822 
the  order  of  sale  Avas  not  void  on  account  of  want  of  notice. 
It  was  so  settled  by  the  decisions  of  this  court.  We  cannot 
decide  to  the  contrary  unless  we  disregard  the  doctrine  of  stare 
decisis  and  overturn  decisions  which  constitute  a  rule  of  prop- 
erty under  which  millions  of  dollars  worth  of  land  are  probably 
held."i 

And  in  Wyman  v.  Camjybell,^  a  still  earlier  decision  of  the 
same-  court,  it  is  holden  that  "  the  proceeding  of  the  orj)hans' 
court  is  m  rein,  against  the  estate  of  the  intestate,  and  not  in 
personam.  The  order  by  that  court  for  the  sale  of  real  estate, 
so  far  as  the  question  of  jurisdiction  is  concerned,  may  well  be 
compared  to  the  condemnation  of  goods  by  a  court  of  ex- 
chequer, Avhere  jurisdiction  attaches  upon  a  seizure — it  merely 
professes  to  divest  the  title  of  the  ancestor  without  affecting 
the  jDcrsons  or  other  property  of  the  heirs." 

§  31.  The  courts  of  Alabama  thus  very  clearly  recognize 
the  paramount  right  of  the  government  to  act  upon  the  title 

'  Siitchcr  V.  Satcher,  41  Ala.  26,  39;  Kin.i?  v.  Kent,  29  Ala.  542;  Matheson 
V.  Hearin,  29  Ala.  210;  Field  v.  Goldsby,  28  Ala.  218;  Wyman  v.  Campbell, 
0  Porter,  219;  McPlierson  v.  CunlilF,  11  S.  &  R.  430;  Lightfoot  v.  Lewis,  1 
Ala.  479. 

'  0  Porter,  219,  232;  Lynch  v.  Baxter,  4  Texas,  431. 


THE   NATUKE    OF   JUDICIAL   SALES.  19 

of  the  ancestor  to  tlie  postponement  of  tlie  Leir.  In  such 
cases  there  arc  no  adverse  parties  litigant.  The  rights  of  those 
previously  interested  in  the  property  are  transferred  from  the 
property  to  the  fund  produced  by  the  sale.^  This  is  by  the 
same  right  and  power  that  enables  the  government  to  regulate 
descents,  make  distribution  of  estates,  make  j^artition,  and  to 
sell  such  property  as  is  not  divisablc  in  kind ;  or  may  not  be 
so  distributed  if  personal. 

§  35.  Such  is  the  power  of  the  government  and  courts  in 
this  respect,  that  the  judicial  arm  reaches  every  possible  inter- 
est. The  rights  of  "unborn  remainder  men"  and  of  persons 
"who  are  not  before"  the  court,  "maybe  concluded;"  the 
court  "acts  upon  the  property"  and  the  rights  of  parties  in 
interest,  as  before  stated,  are  "transferred  from  the  property 
to  the  fund."  Such  is  the  ruling  and  the  language  of  the 
court  in  Bofil  v.  Fislier  and  kindi-ed  class  of  cases.  In  the 
ease  of  Bofils  the  court  say:  "To  say  that  the  court  could  not 
under  circumstances  like  these,  convey  away  the  fee,  would  be 
to  assert  a  doctrine  that  would  render  conditional  limitations 
and  contingent  remainders  an  intolerable  evil  to  a  growing 
and  prosperous  community." 

§  30.  By  such  proceedings  and  sales,  in  probate,  to  pay  a 
decedent's  debts,  where  jurisdiction  has  attached,  the  pur- 
chaser, in  some  of  the  states,  holds  the  lands  freed  from  all 
liens  and  claims,  save  dower,  in  the  resulting  interest  of 
decedent's  heirs  in  the  dower  lands,  and  except  such  liens  as 
are  of  such  a  character  that  the  amount  thereof  cannot  be 
rendered  certain  (as  for  instance,  to  supj^ose  a  case,  a  life  an- 
nuity) so  that  the  same  may  be  paid  off  out  of  the  proceeds 

of  sale.- 

§  37.     In  probate  sales  to  pay  debts,  this  rule  of  paramount 

Bofil  V.  Fisher,  3  Rich.  Eq.  1;  Miller's  Exrs.  «.  Greenbaum,  11  Ohio 
4t.  486;  Moore  ».  Shultz,  13  Penn.  St.  98;  McPherson  «.  Cunliff,  11  S.  &R. 
t30. 

^  Moore  'o.  Shultz,  13  Penn.  St.  103,  103;  Grignon's  Lessee  ?;.  Astor,  2 
How.  338;  West  d.  Townsencl,  12  Ind.  434;  Western  Penn.  R.  R.  Co.  b. 
Johnson,  59  Penn.  St.  290,  294.  In  this  last  case  the  court  say:  "It  is  a 
familiar  principle  that  a  judicial  sale  extinguishes  liens,  not  estates  or 
interests  of  third  persons."     Cadruns  «.  Jackson,  52  Penn.  St.  295. 


20  JUDICIAL    AND   EXECUTION   SALES. 

rig-lit  ill  tlie  court  extends  to  creditors  and  heirs  only,  and  not 
to  adverse  claimants  of  title  otherwise  than  throiiffh  the 
heirs.  1 

§  38.  Though  this  plenary  power  of  the  proper  court,  over 
the  real  estate  of  a  deceased  debtor,  may  seem  unwarranted 
and  anomalous  at  the  iirst  view,  yet  is  not  more  so  than  is  the 
power  which  the  law  gives  the  administrator  or  executor  over 
the  personal  effects,  which  he  may  sell  and  dispose  of,  for  the 
payment  of  debts  wdthout  regard  to  the  heirs,  who  are,  never- 
theless, in  either  case,  entitled  to  the  property  if  there  be  no 
debts  or  it  be  not  sold  in  the  course  of  administration. 

We  are  not  unmindful  that  the  personality  is  said  to  vest  in 
the  executor  or  administrator.  But  not  unconditionally;  only 
for  a  purpose;  and  quere  as  to  the  administrator?  For,  if  so, 
must  it  rest  in  abeyance  until  his  appointment?  Ilis  title  is 
more  in  the  nature  of  authority  to  collect,  preserve,  and  if 
need  be,  or  the  law  require  it,  to  sell.  All  which  is  without 
any  notice  to  the  heirs  and  is  by  force  of  the  same  law  and 
law-making  authority  that  decides  who  shall  be  heirs. 

The  power  to  confer  heirshij)  implies  power  also  to  define 
the  terms  on  which  it  shall  be  conferred. 

§  39.  The  doctrine  laid  down  in  Pennsylvania,  that  judicial 
sales  discharge  all  liens  susceptible  of  being  ascertained  to  a 
certainty,  is  not  to  be  understood  as  assuming  to  vacate  or 
destroy,  but  rather  to  discharge  the  same  out  of  the  proceeds 
of  sale  according  to  priority  so  as  to  close  the  title  to  the 
purchaser. 2  And  sales  made  in  proceedings  for  partition 
being  in  their  nature  judicial  sales,  have  the  same  eifect.^ 

'  Shields  V.  Ashley,  16  Mo.  471. 

^  Girard  Life  lus.  Co.  v.  Fftrmers'  &  Mechanics'  Bank,  57  Pcuu.  St.  388, 
390,  and  see  Miller's  Exrs.  «.  Grcenhaum,  11  Ohio  St.  48G. 

3  Girard  Life  Ins.  Co.  v.  Farmers'  &,  Mechanics'  Bank,  57  Penn.  St.  388, 
39G,  397.  In  this  case  the  court  say  on  this  subject:  "  We  come  then  to 
the  more  general  question,  whether  a  sale  in  partition  by  writ  discharges 
the  lien  of  a  mortgage  on  the  undivided  interest  of  one  of  the  parties.  A 
sale  in  partition  is  alwa3's  for  the  purpose  of  enabling  division.  It  is 
authorized  only  when  it  has  been  determined  that  the  land,  which  is  its 
subject,  cannot  be  divided  according  to  the  command  of  the  writ  'without 
prejudice  to,  or  spoiling  the  whole.'  When  that  appears,  the  law  directs 
u  sale  in  order  to  convert  that  which  is  impartible  into  an  equivalent  thr.t 


THE   NATURE    OF  JLDICIAL  SALES.  21 

Ilcnce,  the  court  held  in  the  case  of  the  Girard  Life  Ins.  Co. 
tliat  the  sale  in  partition  nnder  tlic  statute,  though  the  statute 
males  no  provision  to  such  efi'ect,  discharged  a  prior  mortgage 
lien  upon  the  partitioned  premises.^ 

is  capable  of  distribution.  Such  a  sale  is  eminently  judicial— more  strictly 
so  than  is  a  sale  by  a  sheritt  unaer  an  execution.  It  is  made  under  an 
order  of  the  court;  its  subject  is  in  the  hands  of  the  court,  and  the  pro- 
ceeds are  necessarily  brought  into  court  for  distribution.  The  act  of  1799 
requires  that  the  moneys  or  securities  realized  from  the  sale  '  shall  be 
brought  into  court,'  to  be  distributed.  The  Tvhole  proceeding  is  more 
directly  the  act  of  the  court  than  is  any  other  sheriiTs  sale,  where  the 
officer  acts  under  instructions  of  the  attorney,  and  where  he  may  and  often 
does  distribute  the  purchase  money  of  the  property  sold,  without  any 
supervision  or  direction  of  the  court.  That  Orphans'  Court  sales  in  parti- 
lion  are  judicial  sales,  was  decided  in  Sacket  v.  Twining,  G  Harris,  202, 
and  recognized  in  Jacob's  Appeal,  11  Harris,  477.  I  am  not  aware  that  it 
has  been  directly  decided  whether  a  sale  in  partition  by  writ  in  a  common 
law  court,  is  judicial  or  not,  though  Allen  n.  Gault,  3  Casey,  473,  substan- 
tially rules  that  it  is.  But  without  any  positive  determination,  it  is  impos 
siblo  to  doubt  that  it  is  to  be  so  regarded.  It  certainly  has-  everything 
which  in  other  cases  is  regarded  necessary  to  make  a  sale  judicial,  and  it 
is  even  less  under  private  control  than  almost  any  other  which  is  confess- 
edly such.  Next  it  is  to  be  observed  that  judicial  sales  in  this  state 
discharge  all  liens.  This  is  a  rule  of  almost  universal  application.  There 
are,  indeed,  some  exceptions  to  it,  created  by  express  statutory  enactment, 
and  others  growing  out  of  the  peculiar  character  of  the  lien  or  encum- 
brance; but  it  has  long  been  regarded  as  sound  policy  that  property 
purchased  at  a  judicial  sale  should  pass  into  the  hands  of  the  purchaser 
clear  of  all  mere  liens.  Exceptions  to  the  rule  are  allowed  only  from 
necessity.  If  property  be  thus  sold,  the  chances  are  greatly  increased  that 
It  will  bring  its  full  value,  thus  benefiting  alike  the  owners  and  lien 
creditors.  Sales  in  partition  have  never  been  recognized  as  exceptional, 
and  it  is  not  easy  to  discover  any  reason  why  they  should  be.  In  them  it 
is  as  much  for  the  interest  of  the  owners  of  the  land  and  for  holders  of 
liens  upon  it,  or  parts  of  it,  that  purchasers  shall  not  be  compelled  to  look 
after  incumbrances,  as  it  is  in  any  other  judicial  sale.  And  incumbrancers 
have  the  same  notice  that  is  given  to  them  in  ordinary  cases  of  sales 
under  a  venditioni  exponas.  They  have  no  reason  to  complain,  therefore, 
if  their  liens  be  discharged  from  the  land,  and  attached  to  its  full  equiva- 
lent the  proceeds  of  the  sale.  Surely  a  sale  in  partition  should  not  be 
taken  out  of  the  general  rule  which  regulates  judicial  sales  and  their  con- 
sequences without  some  controlling  reason.  Exceptions  are  not  to  be 
multiplied  unnccessaril3^" 

'  Girard  Life  Ins.  Co.  v.  Farmers'  &    Mechanics'    Bank,  57  Penn.  St. 
388.    The  court,  in  this  ease,  quoting  the  language  in  Williard  v.  Norris, 


22  JUDICIAL   AND   EXECUTION    SALES. 

§  40.  In  Illinois  it  is  liolden  tliat  a  proceeding  on  Jiei'l 
facias  to  foreclose  a  mortgage  under  the  statute,  is  a  proceed- 
ing in  rem  and  not  in  j)ersonam. 

In  such  case  the  practice  is  for  the  court  to  find  the  amount 
due  against  the  defendant  and  order  a  sale  of  the  mortfra<?ed 
premises  on  sj)ecial  execution.^  The  sale,  however,  is  none  the 
less  a  judicial  sale,  for  the  judgment  and  writ  name  the  prop- 
erty to  he  sold,  and  the  condemnation  of  the  property  is  by 
judgment  in  o'em,  although  personal  judgment  is  some  times 
also  o-iven  ajjainst  the  defendant. 


III.       JUMCLVL    S^iLES    IN     PkOCEEUIXGS    PaKTLY     In     KeZSI,     AND 

Partly  In  Personam. 

§  41.  Judicial  sales,  in  proceedings  partly'-i;?.  rem  and  partly 
in  personam^  are  where  the  ^proceedings  are  of  a  mixed  nature, 
being  directly  against  the  property  and  also,  personal  against 
the  owner,  as  in  proceedings  to  foreclose  deeds  of  mortgage 
by  judicial  sale.^  In  such  cases,  there  is  proceedure  in  rem 
against  the  property,  and  at  the  same  time  personal  process 
against  the  mortgagor  to  bring  him  as  defendant  into  court. 

1  Rawle,  G4,  that  "  nothing  could  more  clearly  show  how  notorious  is  tlie 
rule  that  in  every  judicial  sale  in  Pennsylvania  the  land  goes  to  the  pur- 
chaser clear  of  all  judgments  and  moi'tgages,  and  that  out  of  the  purchase 
money  the  sherifl',  at  his  own  risk,  is  to  pay  off  all  these  liens,  according 
to  their  priorit}',  in  so  much  that,  though  the  act  of  assembly  about  parti- 
tions makes  no  mention  of  liens,  yet  by  analogy  drawn  from  the  notorious 
usage  of  the  commonwealth,  an  allowance  was  adjudged  to  the  sheriff  for 
the  fees  paid  for  search  as  of  judgments  and  mortgages,  the  owners  of 
which  might  afterwards  call  upon  him  for  the  money."  The  court  add : 
"For  these  reasons  we  hold  that  a  sale  made  in  partition  by  writ  under 
act  of  1799  does  discharge  the  lien  of  judgments  and  mortgages  upon  the 
land  sold,  having  the  ordinary  effect  of  other  judicial  sales."  Girard 
Life  Ins.  Co.-ij.  Farmers'  &  Mechanics'  Bank,  57  Penn.  St.  396,  097.  But 
a  different  rule  in  regard  to  incumbrances  seems  to  prevail  in  Illinois.  In 
McConnel  i\  Smith,  39  111.  289,  it  is  said  that,  "As  a  general  rule,  subject 
it  may  be  to  some  exceptions,  a  purchaser,  at  an  administrator's  sale, 
acquires  it  (the  propert}-)  with  all  the  incumbrances  to  which  it  is  liable." 

'  Williams  v.  Ives,  49  111.  512. 

*  Kershaw  v.  Thompson,  4  John.  Ch.  009 ;  Downing  v.  Palmeteer,  1  Mon.  G4. 


THE    NATURE    OF   JUDICIAL    SALES.  23 

A  decree  in  tliis  class  of  cases  and  sale  thereon  only  confers 
title  as  ao;ainst  the  parties  to  the  suit.i 

§42.  The  decree  of  foreclosure  and  sale  is  -partly  hi  Q'em, 
being  directly  against  the  property  ;3  whilst  so  much  of  it  as 
bars  the  right  of  redemption  is  in  jiersonam,  divesting  the 
defendant,  as  it  does,  of  the  personal  right  to  redeem.  The 
proceeding  is  predicated  upon  tlie  defendant's  contract  of 
indebtedness  and  mortgage,  and  not  upon  the  j^lenary  power 
of  the  court  over  the  subject  matter,  irrespective  of  the  parties 
in  interest.  Yet  the  sale  is  none  the  less  a  judicial  sale,  and 
the  sale  of  the  court.  The  deed,  Avhere  the  record  of  the  mort- 
a-ao-e  is  reii-ular,  relates  back  and  confers  title  by  relation  to 
the  date  of  the  mortgage  as  against  intervening  claims. 

§  43.  In  some  of  these  cases,  for  instance  wlien  the  defend- 
ant is  not  found,  but  is  brought  in  by  publication,  the  pro- 
ceedings assume  very  nearly  the  features  of  those  which  are 
purely 'm  oxm.  But  there  is  still  a  difference;  for  the  debt 
and  mortgage  deed  exist  in  contract  and  are  no  less  the  basis 
of  the  proceeding  than  they  are  wdien  the  defendant  is  brought 
personally  into  court. 

§  44.  The  judicial  sale  involved  in  the  case  of  Minnesota 
Co.  V.  St.  Paul,  post,  referred  to  was  conducted  by  the  United 
States  marshal,  but  not  by  virtue  of  his  powers  of  office  under 
the  law.  It  was  no  less  judicial  as  made  by  him  than  it  would 
have  been  if  made  under  direction  of  a  master.  The  court 
ordering  the  sale  clothed  him,  in  virtue  of  the  order,  with  a 
master's  powers  in  that  particular.  In  considering  the  case 
of  Minnesota  Co.  v.  St.  Paul,  the  United  States  Supreme  Court, 
speaking  of  the  marshal's  appointment,  say  that  he  was 
"directed  to  make  the  sale  instead  of  a  master  commissioner;" 
and  that  the  sale  so  made  "  was  confirmed  by  the  order  of  the 
district  court."  Yet  as  more  and  other  property  was  sold  than 
was  included  in  the  decreo,  the  court  held  the  sale  of  that  part 
which  was  not  include<l  in  the  decree  invalvid  notwithstand- 
ing its  confirmation.     The  Supreme  Court  attribute  the  con- 

'  Hiiines  v.  Beach,  3  John.  Cli.  459. 

""  Kershaw  v.  Thompson,  4  John.  Ch.  609, 


2J:  JUDICIAL    AXD    EXECUTION    SALES. 

firmation,  as  to  the  excess,  to  an  oversiglit,  and  do  not  decide 
positively  as  to  tlie  power  of  a  court  to  confirm  in  such  a  sale, 
with  knowledge  of  the  departure  from  the  decree,  but  remark 
that  "  cases  in  this  (Supreme)  court  would  seem  to  decide  that 
it  cannot,  1  and  they  refer  to  Shriver  v.  Lynn^  and  Ch'ay  v. 
Brignardello.^ 

§  45.  The  sale  then  which  was  here  brought  in  question 
was  clearly  a  judicial  sale,  though  made  by  the  same  person 
who  exercised  the  office  of  marshal,  or  if  preferred  by  the 
marshal,  for  it  were  competent  for  the  court  to  so  designate 
and  appoint  him.  Tliis  sale  is  regarded  by  the  Supreme  Court 
of  the  United  States  as  judicial,  wherein  they  liken  it  to  a 
"  master's  sale  "  in  this,  "  that  a  j)urchaser  or  bidder  at  a  mas- 
ter's sale  "  subjects  himself  "  quod  hoc  to  the  jurisdiction  of 
the  court,"  and  that  therefore  the  purchasers  were  estopped  to 
deny  being  within  the  jurisdiction  of  the  court  as  parties  in 
litigation  in  the  case."* 

1  Minnesota  Co.  t.  St.  Paul,  2  Wall.  C40,  641.  And  in  Gaines  v.  New 
Orleans,  G  Wall.  714,  the  Supreme  Court  of  the  United  States  hold  that  a 
probate  court  "  could  not  by  a  subsequent  order  give  validity  to  sales  made 
by  executors  which  were  null  and  void  by  the  law  of  the  state  when  they 
were  made." 

"-  3  How.  43. 

'  1  Wall.  G37. 

4  Minnesota  Co.  v.  St.  Paul,  3  Wall.  G34. 


CHAPTER  II. 

THE  NATURE  OF  EXECUTION  SALES 

I.    They  are  MrNiSTEniAL  Sales. 

II.    The  Officer  Selling  is,  ix  La-sv,  the  Attorney  op  the  Execu- 
tion Debtor. 

III.  There  is  No  Warranty.    The  Rl^le  caveat  emptor  Applies. 

I V.  They  are  Within  the  Statute  of  Frauds. 

V.    Effects  op  Subsequent  Reversal  op  Judgments,  or  Quashing 
the  Execution. 

I.     They  ake  MmiSTERiAL  Sales. 

§  40.  In  making  ordinary  execution  sales,  simply  by  virtue 
of  his  office,  tlie  sheriff  or  marshal  acts  as  the  ministerial 
officer  of  the  law,  not  as  the  organ  of  the  court.  He  is  not 
its  instrument  or  agent,  as  in  judicial  sales,  and  the  court  is 
not  the  vendor.  His  authority  to  sell  rests  on  the  law  and  on 
the  writ,  and  does  not,  as  in  judicial  sales,  emanate  from  the 
court.  The  functions  of  the  court  terminate  at  the  rendition 
of  the  judgment,  except  where  confirmation  of  the  sale  is  the 
practice.  The  court  does  not  direct  what  shall  be  levied  or 
sold,  or  how  the  sale  shall  be  made.  The  law  is  the  officer's 
only  guide.  1 

§47.  This  very  principle  was  distinctly  avowed  by  the 
Supreme  Court  of  the  United  States — Daniel,  Justice — in 
Griffin  V.  Thomjpson^^  in  reference  to  which  that  court  charac- 
terize the  marshal's  functions  in  enforcing  an  execution  at  law 
in  the  following  terais :  In  reference  to  his  powers  and  duties 
the  court  say  that  he  is  the  "  officer  of  the  law,  and  is  bound 
to  fulfil  the  behests  of  the  law;  and  this,  too,  without  special 

iRac.  Abt.  Sheriff,  M.;  Foreman  ®.  Hunt,  3  Dana,  (Ky.)  G14,  G21;  Gant- 
ley's  Lessee  •».  Ewing,  3  How.  714;  Todd  t?.  Pliilhower,  4  Zabr.  79G;  Mc- 
Kuight  -c.  Gordon,  13  Rich.  Eq.  (S.  C.)  222 ;  South  v.  Maryland,  18  How 
390,  403;  Armis  v.  Smith,  IG  Pet.  309,  313;  Griffin  v.  Tliompson,  3  How. 
25G,  357. 

"  3  How.  35G,  337. 

(25) 


2G  JUDICIAL   AND    EXECCTIOX    S.VI.ES. 

instruction  or  admonition  from  any  person."  Uiililvea  mastci 
or  commissioner,  selling  on  decree  in  chancery,  the  law  is  liis 
guide;  whilst  the  master  or  commissioner  are  subject  to  the 
guidance  and  the  order  of  the  court.  In  the  language  of  the 
learned  Justice  Eedfield,  "It  is  plain  then  that  a  sheriff's  sale 
is  not  a  judicial  sale.  If  it  were,  no  action  could  be  brought 
against  the  sheriff  for  selling  upon  execution  j)roperty  not 
belonging  to  the  debtor."  ^ 

§  48.  There  are  exceptions  to  this  rule,  some  of  which  may 
be  stated.  "When  by  the  law  the  sale  is  required  to  be  reported 
to  the  court  for  confirmation,  and  is  only  binding  when  con- 
firmed by  the  court,  in  such  cases  sheriff's  sales,  on  ordinary 
execution,  partake  of  the  nature  of  judicial  sales;  for  the 
act  of  confirmation  is  a  judicial  act,  and  is  spread  upon  the 
records.  This  distinction,  to-wit:  the  necessity  of  confirmation, 
is  the  line  drawn  by  Mr.  Justices  Stoey  and  Baldwin  on  the  cir- 
cuit, and  Geier  delivering  the  opinion  of  the  Supreme  Coui-t 
of  the  United  States,  as  contra-distinguishing  judicial  from 
execution  sales.- 

§49.  Another  exception  to  the  rule  first  above  stated  is,  in 
mixed  cases  of  law  and  equity;  in  which  special  executions 
issue  under  the  statute,  partly  partaking  of  the  nature  of  an 
execution  at  law  and  of  an  order  of  sale  in  chancery.  Here 
the  precise  character  of  the  sale  depends  upon  the  sj)ecial 
features  of  each  case.  It  maybe  judicial,  and  it  maybe  min- 
isterial, as  either  feature  predominates;  and  it  may  partake  of 
the  qualities  of  each  in  some  respects. 

§  50.  In  ordinary  execution  sales,  the  court  neither  order 
the  execution  nor  the  sale.  There  are,  however,  special  instances 
when  ordinary  writs  of  execution  are  ordered  by  the  court,  as 
when  there  is  satisfaction  wrongfully  entered  of  a  judgment, 
or  returned  of  an  execution,  satisfaction  will  be  set  aside  and 
an  alias  \n:\.t  of  execution  will  be  ordered;  but  when  issued,  it 
is  none  the  less,  a  mere  ordinary  execution,  and  on  it  the 
sheriff  sells  under  the  power  of  the  law. 

'  Griflilli  V.  Fowler,  18  Vt.  394. 

''Thompson'!).  Philips,  1  Bald.  C.  C.  2G4;  Arnold  v.  Smith,  5  Mason,  C. 
C.  414,  420,  421 ;  Griffith  v.  Bogart,  18  How.  108. 


THE   NATURE   OF   EXECUTION   SALES.  27 

§51.  The  exercise  of  this  power,  liowever,  is  invoked  by 
tlie  writ  of  execution.  The  act  of  selling  is  ministerial.  ^  The 
officer  selling  is  for  that  purpose  constituted  by  law  the  agent 
and  attorney  of  the  execution  defendant  ;3  and  is  not,  as  in 
judicial  sales,  the  agent  or  instrument  of  the  court.  ^ 

§  52.  The  title  under  sherifl'  sale  passes  to  the  purchasers,  as 
a  general  rule,  without  the  express  sanction  or  confirmation  of 
the  court,*  which  possesses  only  the  negative  power  of  setting 
aside  the  sale  for  cause.  To  this,  however,  there  are  exceptions 
in  several  of  the  States,  where,  by  law,  confirmation  is  required.  '^ 

§  53.  In  the  latter  class  of  cases  the  sale,  by  the  judicial 
act  of  confirmation,  becomes  in  some  respects  a  judicial  sale, 
and  as  such  is  characterized  by  Justice  B^VLDw^N,  in  Thom2)Son 
V.  Philips,  a  case  which  arose  under  the  laws  of  Pennsylvania, 
and  Avliere  by  the  courts  in  other  Pennsylvania  cases  the  prac- 
tice is  to  confirm  in  open  court  at  the  time  of  the  acknowledg- 
ment of  the  deed.  In  that  case  the  court  say:  "In  this  State 
the  reception  of  an  acknowledgment  of  a  sheriff's  deed  is  a 
judicial  act,  in  the  nature  of  a  judgement  of  confirmation  of 
all  the  acts  jDreceding  the  sale,  curing  all  defects  in  the  process 
or  its  execution,  which  the  court  has  power  to  act  upon."  '^ 
When  the  acknowledgment  is  thus  taken  and  the  deed  or  sale 
confirmed,  then,  in  contemplation  of  law,  everything  which 
has  been  done  is  considered  as  done  by  the  order  or  under  the 
sanction  of  the  court." 

^  Bac.  Abt.  title  Sheriff,  M.  G89,  G91 ;  Todd  v.  Philliowcr,  4  Zabr.  (X.  J.)  TOG. 

^  Cooper's  Lessee  t.  Galbraitli,  3  Wash.  C.  C.  54G,  550;  Swortwell  i\  Mar- 
tin, IG  Iowa,  519. 

^Foreman  w.  Hunt,  o  Dana,  G22;  McKnight  v.  Gordon,  13  Rich.  Eq. 
(S.  C.)  222. 

*  Foreman  «.  Hunt,  3  Dana,  G14,  G21,  G22. 

5  Curtis  V.  Norton,  1  Ham.  278;  Thompson  v.  Philips,  1  Bald.  C.  C.  24G, 
272;  McBain  v.  McBain,  15  Ohio  St.  337. 

« Thompson  v.  Philips,  1  Bald.  C.  C.  272;  Smith  v.  Simpson,  GO  Penn.  St. 
169;  McBain  v.  McBain,  15  Ohio  St.  337. 

'Thompsons.  Philips,  1  Bald.  C.  C.  272;  Voorhees  v.  Tlie  U.  S.  Bank, 
10  Pet.  472,  476;  McBain  v.  McBain,  15  Ohio  St.  337;  Wuods  v.  Lane, 
3  S.  and  Rawle,  54,  55. 


28  JUDICIAL   AND    EXECUTION    SAEES. 

II.     The  Officer  Seeles'g  IS,  IX  Law,  THE  Attoijney  of  the 
Execution  Debtor. 

§  54:  The  slieriff  or  other  officer  making  the  sale  is  einpow- 
cred  by  law  to  convey  by  deed  to  the  purchaser,  nnder  an 
execution,  all  the  right,  title,  interest  and  estate  of  the  defend- 
ant, as  fully  (but  not  to  warrant)  as  the  defendant  himself,  or 
an  attorney  empowered  for  that  purpose  by  him,  could  do.  The 
officer,  in  fact,  acts  as  such  attorney  or  agent,  appointed  for 
that  purpose  by  law. 

§55.  The  purchase  money  is  applied  to  the  use  of  the 
defendant  in  the  discharge  of  his  debt;  between  him  and  the 
purchaser  the  law  raises  a  contract,  in  like  manner  as  if  the 
conveyance  (without  warranty)  had  been  made  by  himself. ' 
We  have  chosen  in  most  of  the  above  to  appropriate  the  very 
lanjruaire  of  that  ffreat  Jurist,  Justice  Washington. 

§5G.  In  Coope7'''s  Zesseev.  Galhraith,^  Justice  Washington 
says:  "  The  sheriff  is  empowered  by  law  to  convey  by  deed  to  the 
purchaser,  under  execution,  all  the  right,  title,  interest  and 
estate  of  the  defendant,  as  fully  as  the  defendant  himself,  or  an 
attorney  empowered  for  that  purpose  by  him  could  have  done. 
The  officer,  in  fact,  acts  as  such  attorney,  appointed  for  that 
purpose  by  law." 

And  the  same  doctrine  is  held  in  South  Carolina.  In  Ifasscij 
V.  Tliomqjson^^  Justice  Colcock  said:  " The  defendant  ought 
not  to  be  permitted  to  oppose  the  title  of  a  purchaser.  The 
sheriff's  deed  is  his.  He  has  received  the  consideration.  It 
has  been  applied  to  the  payment  of  his  debts.  He  should  be 
estopped."  The  doctrine  is  again  reasserted  by  Justice  Inglis, 
in  ITcKnight  v.  Gordon.^ 

»  Cooper's  Lessee  v.  Galbraith,  3  Wash.  C.  C.  546,  550;  Swortzell  v.  Mar- 
tin, 10  Iowa,  519;  Conway?;.  Nolte,  11  Mo.  74;  Mclvniglit  ^.  Gordon,  13 
Rich.  Eq.  (S.  C.)  223;  Kilgore  v.  Pcden,  1  Strob.  Eq.  19 

2  3  Wash.  C.  C.  550. 

»  2  K  &  McCord.  105. 

*  13  Ilich.  Eq.  222,  239. 


TnE    NATURE    OF   EXECU'llON    SALES.  29 

III.    There  is  Ko  Implied  "W^NJiRANTr.    Tue  Rule  of  Caveat 
Emptor  AiTLiES. 

§  57.  In  making'  a  sale  under  execution  tlic  slieriff  or  other 
public  ofHcer  professes  to  sell  only  the  interest  or  estate  of  the 
judgment  debtor  in  the  premises. 

He  is  not  bound  to  convey  "svith  a  warranty;  neither  does 
the  law  imply  one:  The  rule  of  caveat  emjytor  aj^plies.  Let 
the  buyer  beware  of  the  title  for  which  he  bids.  ^ 

§  58.  The  purchaser  acquires  only  the  title  of  the  execution 
defendant  as  it  existed  at  the  date  of  the  judgment,  if  such 
judgment  is  a  lien  upon  the  premises  sold;^  and  if  not  a  lien, 
then  from  the  date  of  the  levy  of  the  execution  ;3  but  if  suit  is 
by  attachment,  then  the  purchaser  takes  title  from  the  date  of  the 
levy,  or  as  in  attachments,  delivery  of  writ,*  or  as  in  some  of  the 
states  from  the  test,  and  in  others  from  the  delivery  of  the  writ.^ 

If  the  officer  convey  with  warranty,  he  binds  himself  thereby, 
personally,  and  no  one  else.^ 

§  59.  Purchasers  at  execution  sales  cannot,  when  there  is  no 
fraud,  excuse  themselves  from  paying  the  amount  of  the  pur- 
chase money,  uor  avoid  their  bid  by  showing  that  the  judg- 
ment debtor  had  no  title  to  the  property  sold,  or  that  his  title 
tliereto  was  defective. 

The  maxim  caveat  em,ptor  applies  in  all  its  strictness.  There 
is  no  warranty.     The  officer  sells  only  the  title  of  the  debtor.'' 

^  Hammersmith  «.  Espy,  19  Iowa,  444,  446;  Dean  «.  Morris,  4  G-.  Green, 
312;  Eittcr  v.  Hensliaw,  7  Iowa,  97,  lOO;  Avant  v.  Reed,  3  Stew.  488; 
Piiilips  «.  Johnson,  14  B.  Men.  (Ky.)  173;  Harth  -a.  Gibbes,  3  Rich.  316; 
Reed's  Appeal,  13  Penn.  St.  (1  Harris,  476);  Rockwell  v.  Allen,  3 
]\IcLean,  357;  Creps  v.  Baird,  3  Ohio  St.  277;  Lang  t\  Waring,  25  Ala. 
025 ;  Coyne  v.  Souther,  61  Penn.  St.  457. 

«  Smith  -B.  Allen,  1  Blackf.  22;  Bac.  Abt.  title  Execution,  725;  Miller©. 
Finn,  1  Neb.  255. 

^  Boyd  «.  Longworth,  11  Ohio,  235. 

*  Shirk  t.  Wilson,  13  Ind.  129. 

5  McLain  v.  Upchurch,  2  Murph.  353;  Lewis  v.  Smith,  3  S.  &  R.  157. 

0  Rockwell  '0.  Allen,  3  McLean,  357;  The  Monte  Allegre,  9  Wheat,  016. 

■"  Camden  «.  Logan,  8  Iowa,  434;  Dean  v.  IMorris,  4  G.  Greene,  313;  Dean 
«.  Frazier,  8  Blackf.  433 ;  Rogers  v.  Smith,  3  Carter  (Ind.)  526;  Engleman 
».  Clark,  4  Scam.  486. 


30  JUDICIAL   AND   EXECUTION   SALES. 

§  60.  Siicli  sales  are  none  tlie  less  sheriff's  sales  if  the 
officer,  at  tlie  instance  of  the  plaintiff  and  defendant  in  execu- 
tion, sells  on  a  credit;  and  therefore  the  collection  of  a  note 
given  for  such  purchase  money  cannot  be  evaded  by  reason  of 
failure  of  title.  ^ 

IV.     TiiEY  AEE  WITHIN  THE  Statute  of  Frauds. 

§  Gl.  Execution  sales,  in  the  absence  of  any  memorandum 
of  the  officer  selling,  are  considered  within  the  statute  of 
frauds. 2  The  case  here  cited  arose  in  Maryland,  where  no 
formal  deed  is  made  by  the  sheriff",  but  the  return  of  the 
sheriff  constitutes  the  purchaser's  muniment  of  title.  The 
same  rule,  however,  prevails  in  reference  to  tlie  statute  of 
frauds  where  deeds  are  executed  by  the  sheriff. 

§  G2.  Such  sales  by  the  sheriff  are  made  under  the  law  and 
not  under  direction  of  the  court,  and  not  being  sales  of  the 
court  as  are  judicial  sales  strictly  such,  they  are  within  the 
statute.  But  the  judicial  sale,  being  a  sale  in  court,  the  buyer 
becomes  a  party  to  the  case  and  is  in  court,  and  the  court  will 
not  allow  its  own  proceedings  to  be  repudiated  under  the 
statute. 

V.     Effect  of  Keveksal  of  Judg:ment. 

§  Go.  Sales  made  under  process  issued,  or  irregular  or 
erroneous  judgments,  are  not  affected  by  the  subsequent  re- 
versal of  such  judgments  for  mere  error  or  irregularity. ^  But 
the  contrary  is  the  settled  doctrine,  where  the  reversal  is  for 
want  of  jurisdiction  to  render  judgment.     Sales  in  the  latter 

^  Killgore  v.  Pedan,  1  Strobt.  18. 

2  4  Kent,  Com.  434;  Remington  «.  Linthicum,  14  Pet.  84;  Hart  «.  Rec- 
tor, 13  Mo.  497;  Chapman  v.  Ilarwood,  8  Blackf.  82;  Iladden  v.  Johnson, 
7  Ind.  394;  Barney  v.  Patterson,  G  liar.  &  J.  183. 

2  Williams  v.  Cummins,  4  J.  J.  Marsh,  G37;  Barney  «.  Patterson,  G  liar 
&J.  182;  Reardon  v.  Searcey,  2  Bibb.  202;  Coleman  «.  Trabine,  2  Bibb 
518;  Sneed  v.  Reardon,  1  A.  K.  Marsh,  217;  Estes  «.  Booth,  20  iVrk.  583 
Bank  of  U.  S.  v.  Bank  of  Washington,  G  Pet.  8 ;  Ponder  v.  Moselej^  2  Fla 
211;  McLogan  v.  Brown,  11  III.  519;  Herrick  v.  Graves,  10  Wis.  157;  Stin. 
Bon  V.  Ross,  51  Maine,  55G ;  Cox  e.  Nelson,  1  Mon.  94, 


THE    NATCIiE    OF    EXECUTIO>f    SALES.  31 

class  of  cases  are  void  db  initio.  There  can  be  no  valid  sale 
"without  a  valid  writ,  and  no  writ  is  valid  as  an  execution  that 
is  based  on  a  void  judgment. ^ 

§  64.  Against  mere  irregularities,  it  is  the  policy  of  the 
law  to  sustain  execution  sales,  as  against  the  judgment  debtor. 

§  65.  In  Indiana,  when  the  execution  plaintiff  is  purchaser 
at  an  execution  sale,  and  the  judgment  is  thereafter  reversed, 
the  sale  is  void  under  the  statute;"  and  so  likewise  if  the 
judgment  be  reversed  only  in  part;  as  for  costs,  when  the  sale 
is  made  for  both  debt  and  costs.  ^ 

§  ^Q.  In  Ohio,  under  the  appraisement  law  of  1541,  sales 
at  law  on  execution  are  required  to  be  confirmed  by  the  court. 
It  is  there  holden  that  when  the  execution  plaintiff  is  pur- 
chaser and  has  not  conveyed  the  property  away  to  a  bona  fide 
purchaser  by  the  reversal  of  the  order  of  confirmation,  the 
sale  becomes  a  "  nullity  "  and  the  title  is  "  divested  "  out  of 
such  execution  purchaser.^ 

§  67.  It  is  further  held  by  the  Iowa  court,  in  Tivogood  v. 
Franklin,^^  that  the  effect  of  the  reversal  is  to  avoid  the  sale 
and  defeat  the  title  in  the  hands  of  such  execution  purchaser, 
so  buying  with  notice  of  appeal,  and  also  the  title  of  his 
grantee,  who  takes  by  purchase,  under  him,  with  knowledge, 
after  the  reversal  of  the  judgment. 

Tlie  latter  result  follows  as  a  matter  of  course,  as  a  grantor 
can  confer  on  one  having  like  notice  with  himself  no  better 
title  than  he  himself  has. 

§  68.  In  Iowa,  it  is  provided  by  statute  that  bona  fide  ex- 
ecution purchasers  of  property,  under  a  judgment  that  is 
subsequently  reversed,  shall  not  be  affected  in  their  title  by 
such  reversal.*' 

The  courts  of  that  state  hold,  however,  that  where  an  appeal 
is  taken  from  a  judgment,  although  there  be  no  supersedeas 

'  Abbe  v.  y.^ood,  8  Mass.  79. 

-  Hutchens  v.  Doe,  3  Ind.  528 ;  Doe  v.  Crocker,  2  Carter,  575. 

=  Hutchens- ».  Doe,  3  Ind.  528. 

4  McBain  v.  McBain,  IG  Ohio  S.  337,  349. 

5  27  Iowa,  239. 

«  Revision  of  1860,  Sec.  3541. 


02  JUDICI.iL   AXD   EXECUTION   SALES, 

Dona  given,  ana  tno  piamiiif  lakes  execntiou  anu  purenascs 
thereon  pending  the  appeal,  that  such  execution  purchaser  is 
not,  in  reference  to  such  a  transaction,  a  hona  fide  purchaser; 
that  he  is  not  witliin  the  provisions  of  said  section  354:1  of 
the  Eevision,  and  that  his  grantee  buying  after  reversal  is  in 
a  like  condition.  ^ 

»  Twogood  V.  Franklin,  27  Iowa,  239. 


PAUT   SECOND. 
JUDICIAL  SALES  CF  EEAL  PROPERTY. 


CIIAPTEP    III 

JURISDICTIOX  OF  THE  COURT  ORDERING  THE  SALE. 

I.    The  JutvISdictiox  is  Local. 
IL    JuiiisDiCTiON  IS  Power  to  Hear  and  Determine. 
IIL    There  IMust  be  Jurisdiction  op  the  Subject  Matter  and  of 
THE  Particular  Case. 

IV.  Title  Passes  by  Operation  of  Law. 

I.     The  Jukisdiction  is  Loay.. 

§  GO.  Jurisdiction  of  real  property  can  only  be  obtained  by 
the  tribunal  of  tlie  country  wherein  tlie  property  is  situated. 
Lands  lying  in  one  state  cannot  be  readied  or  sold  nnder  an 
order,  license,  or  decree,  of  a  court  of  another  and  different 
state.  The  jurisdiction  is  local.  The  le:c  loci  rei  sitcB  gov- 
erns. ^ 

II.     It  is  Powkk  to  Hear  A>rD  DETERiUNE  a  Cause. 

§  TO.  Jurisdiction  in  the  court  is  power  to  "  hear  and 
determine"  the  particular  cause  involved. ^     If  this  power  to 

>  Watts  «.  Waddle,  G  Pet.  400 ;  Story,  ConQict  of  Laws,  Sees.  19,  20,  538, 
543;  Nowler  i>.  Coit,  1  Ham.  519;  Brown  v.  Edson,  23  Vt.  435;  Ex  parte 
Read,  3  Sneed  (Teun.)  375;  Rogers  v.  McLaiu,  31  Barb.  304;  Tardy  t. 
Morgan,  3  McLean,  358;  McCormack  v.  Sullivan,  10  Wheat.  192;  Wilkin- 
son V.  Leland,  2  Pet.  G27,  055;  Price  v.  Johnson,  10  Ohio,  St.  390;  Blake 

V.  Davis,  20  Ohio,  231 ;  Lattinger  v.  R.  R.  Co.  43  Mo.  105. 

^  United  States  ■y.  Arredondo,  G  Pet.  709 ;  Grignon's  Lessee  v.  Astor,  3 

How.  338 ;  Beauregard  «.  New  Orleans,  18  How.  502,  503 ;  Wilder  v.  City 

of  Chicago,  2G  111.  179,  182;  Shelden  v.  Newton,  3  Ohio  St.  494;  Smiley 

r.  Sampson,  1  Neb.  56,  70.    In  Grignon's  Lessee  v.  Astor,  the  United  States 

3  (33) 


34  .JUDICIAL   AjST)   execution    SALES. 

hear  and  determine  the  particular  case  docs  not  exist  in  the 
court  in  point  of  law,  then  there  can  be  no  jurisdiction  of  the 
case. 

If  it  does  exist,  then  to  confer  actual  jurisdiction  of  the 
particular  case,  or  subject  matter  thereof,  the  jurisdictional 
power  of  the  court  must  be  invoked  or  brought  into  action,  by- 
such  measures  and  in  such  manner  as  is  required  by  the  local 
law  of  the  tribunal.  When  this  is  done,  it  is  then  coram  judi- 
cis.  If  this  be  not  done,  there  is,  at  least,  error,  if  not  wani 
of  validity  in  the  proceedings. 

§  71.  The  manner  of  conferring  actual  jurisdiction  of  the 
particular  case  is  variously  modified  and   regulated   by  thp 

Supreme  Court  say:  "The  power  to  hear  and  determine  a  cause  is  juris- 
diction ;  if  the  petitioner  presents  such  a  case  in  iiis  petition,  that  on  a 
demurrer  the  court  would  render  a  judgment  in  his  favor,  it  is  an  un- 
doubted case  of  jurisdiction;  whether  on  an  answer  denying  and  puttinij 
in  issue  the  allegations  of  the  petition,  the  petitioner  makes  out  his  case, 
is  the  exorcise  of  jurisdiction  conferred  by  the  tiling  a  petition  containing 
all  the  requisites,  and  in  the  manner  required  by  law.  6  Pet.  709.  Any 
movement  by  a  court  is  necessarily  the  exercise  of  jurisdiction.  So  to 
exercise  any  judicial  power  over  the  subject  matter  and  the  parties,  the 
question  is,  whether,  on  the  case  before  the  court,  their  action  is  judicial, 
or  extra  judicial,  with  or  without  the  authority  of  law,  to  render  a  judg. 
ment  or  decree  upon  the  rights  of  the  litigant  parties.  If  the  law  con^^rs 
the  power  to  render  a  judgment  or  decree,  then  the  court  has  jurisdiction 
what  shall  be  adjudged  or  decreed  between  the  parties,  and  with  which  is 
the  right  of  the  case,  is  judicial  action  by  hearing  and  determining  it. 
12  Pet.  718;  3  Pet.  205.  It  is  a  case  of  judicial  cognizance  and  the  pro- 
ceedings are  judicial.  12  Pet.  623.  This  is  the  line  which  denotes  juris- 
diction and  its  exercise.  In  cases  in  personam,  where  there  are  adverse 
parties,  the  court  must  have  power  over  the  subject  matter  and  the  parties; 
but  on  a  proceeding  to  sell  the  real  estate  of  an  indebted  intestate  there 
are  no  adversary  parties,  the  proceeding  is  in  rem,  the  administrator 
represents  the  land,  11  S.  &  R.  432;  they  are  analogous  to  proceedings  in 
the  admiralty,  where  the  only  question  of  jurisdiction  is  the  power  of  the 
court  over  the  thing,  the  subject  matter  before  them,  without  regard  to 
the  persons  who  may  have  an  interest  in  it;  all  the  world  are  parties.  In 
the  orphans'  court  and  all  courts  who  have  power  to  sell  the  estates  of 
intestates,  their  action  operates  on  the  estate,  not  on  the  heirs  of  the  intes 
tate;  a  purchaser  claims  not  their  title,  but  one  paramount.  11  S.  &  R 
420.  The  estate  passes  to  him  by  operation  of  law.  11  S.  &  R.  428.  The 
sale  is  a  proceeding  in  rem,  to  which  all  claiming  under  the  intestate  are 
parties,  11  S.  &  R.  429,  which  directs  the  title  of  the  deceased.  11  S.  &  R. 
430." 


JUDICIAL    SALES    OF    KE.VL    I'KOrEIiTY.  35 

enactments  of  the  different  states  in  rco;ard  to  notice  and  mat- 
ters  of  practice,  and  wliicli  sliould  severally  be  conformed  to  as 
necessary  to  give  validity  to  tlie  proceedings.  To  effect  tins 
the  petition  or  plaint  must  be  sucli  as  is  sustainable  on  de- 
murrer. ^ 

§  72.  But  altliougli  such  conformity,  as  to  notice  and  other 
matters  of  practice,  may  not  appear  to  have  existed  from  the 
record  itself,  yet  if  jurisdiction  of  the  particular  cause  fully 
attached  by  such  petition  as  is  sustainable  on  demurrer,  then 
the  existence  of  notice  and  other  incidental  requirements  will 
be  inferred  after  judgment  or  decree;  and  the  question  in  regard 
to  the  same  will  not  be  open  to  collateral  inquiry.  The  record, 
including  the  presumptions  in  law,  so  arising  therefrom,  will 
be  received,  on  collateral  inquiry,  as  verity.  ^ 

'  Morse  v.  Goold,  11  N.  Y.  381;  Jackson  v.  Babcock,  IG  K  Y.  246;  Gib- 
son t).  Roll,  30  III.  173;  Johnson  i;.  Johnson,  30  111.  215;  United  States  v 
Arredondo,  G  Pet.  709;  Reddick  v.  The  Bank,  27  111.  147;  Alabama  Confer, 
cncc  V.  Price's  Exrs.  43  Ala.  49;  Grignou's  Lessee -o.  Astor,  3  How.  338 ; 
Goudy  V.  Hall,  30  111.  109 ;  Whiting  v.  Porter,  33  111.  445 ;  Mason  v.  Mes- 
senger, 17  Iowa,  2GS;  Smily  v.  Sampson,  1  Neb.  5G,  70. 

=  Morrow  v.  Weed,  4  Iowa,  77;  Grignon's  Lessee  v.  Astor,  3  How.  219; 
Reeves  v.  Townsend,  3  Zab.  396;  Paul  v.  Hussey,  35  Maine,  97,  100;  Fox  v. 
Hoit,  13  Conn.  491;  Wilson  v.  Wilson,  18  Ala.  176;  Sheldon  v.  Newton,  3 
Ohio,  (N.  S.)  495;  Simpson  v.  Hart,  1  Johns.  Ch.  91;  Davenports.  Smith; 
15  Iowa,  213;  Hart  v.  Jewctt,  11  Iowa,  376;  Frazier  ».  Steenrod,  7  Iowa, 
339;  Myers  v.  McDougall,  47  111.  287;  Carter  v.  Waugh,  43  Ala.  452;  Mer- 
ritt  V.  Home,  5  Ohio  St.  318;  Rhode  Island  v.  Massachusetts,  13  Pet.  657. 
The  court,  in  the  case  of  Grignon's  Lessee  v.  Astor,  add  on  this  subject 
that,  "The  granting  the  license  to  sell  is  an  adjudication  upon  all  the  facts 
necessary  to  give  jurisdiction,  and  whether  they  existed  or  not  is  wholly 
immaterial,  if  no  appeal  is  taken;  the  rule  is  the  same  whether  the  law 
gives  an  appeal  or  not;  if  none  is  given  from  the  final  decree,  it  is  con- 
clusive on  all  whom  it  concerns.  The  record  is  absolute  verity,  to  contra- 
dict whicli  there  can  be  no  averment  or  evidence,  the  court  having  poAver 
to  make  the  decree,  it  can  be  impeached  only  by  fraud  in  the  party  who 
obtains  it.  G  Pet.  729.  A  purchaser  under  it  is  not  bound  to  look  beyond 
(he  decree,  if  there  is  error  in  it  of  the  most  palpable  kind;  if  the  court 
which  rendered  it  have,  in  the  exercise  of  jurisdiction,  disregarded,  mis- 
construed, or  disobeyed  the  plain  provisions  of  the  law  which  gave  them 
the  power  to  hear  and  determine  the  case  before  them,  the  title  of  a  pur- 
chaser is  as  much  protected  as  if  the  adjudication  would  stand  the  test 
of  a  writ  of  error;  so  where  an  appeal  is  given  but  not  taken  in  the  time 
prescribed  by  law.    These  principles  arc  settled  as  to  all  courts  of  record 


36  JUDICIAL   AXD   EXECUTION   SALES. 

III.  There  :must  not  only  ue  Power  to  take  Jurisdiction  of  tiie 
Subject  Matiek,  but  tiiebe  must  be  Actual  Jui^isdiction 
of  the  Particular  Case. 

§  73.  The  power  of  tlic  court,  as  we  liavc  seen,  over  the 
proj)erty  or  subject  matter  referred  to  in  the  proceeding  must 
1)0  invoked  over  the  particular  case  by  a  petition  good  upon 
demurrer:  and  so  it  must,  bv  personal  notice,  or  service,  where, 
l)y  statute,  the  latter  is  essential  to  confer  jurisdiction. ^ 

§  74.  The  action  of  the  court  and  the  notice  of  sale,  as  also 
the  sale  itself,  must  be  of  and  concerning  the  same  subject 
matter  described  in  the  petition.  If  the  want  of  sueh  con- 
formity appears,  as  if  the  petition  be  in  reference  to  one  tract 
of  land,  and  the  decree,  sale,  or  notice  of  sale,  be  of  another 
and  different  one,  then  no  title  will  pass  by  the  sale.  The 
proceedings,  so  far  as  the  sale  is  concerned,  will  be  a  nullity. 
In  Frazier  v.  Steenrod^  the  order  of  sale  and  the  notice  of  sale 
were  for  entirely  different  tracts  of  land,  and  the  court  held 
the  sale  void,  although  the  sale  was  of  the  tract  described  in 
the  order,  and  the  sale  and  deed  had  been  approved  by  the 
probate  court.- 

§  75.  The  principle  of  caveat  emptor  applies  and  the  buyer 
must  lookout  for  himself.  ^  No  mere  error,  however,  or  irreg- 
ularity, will  affect  the  validity  of  the  sale  on  collateral  inquiry. 
The  remedy  for  these  is  by  appeal,  if  one  be  by  law  allowed ; 
and  if  not  allowable,  then  the  adjudication  and  proceedings  arc 

^v]ucl^  have  an  orii^iual  general  jurisdiction  over  any  particular  subjects; 
they  arc  not  courts  of  special  or  limited  jurisdiction;  they  are  not  inferior 
courts,  in  the  technical  sense  of  tlie  term,  because  an  appeal  lies  from  their 
decisions." 

*  Alabama  Conference  «.  Price,  43  Ala.  40,  and  ante  p.  33,  u.  1 ;  Cooper  r. 
Sunderland,  3  Iowa,  114;  Moore  I).  Kiel,  39  III.  250;  Frazier  ».  Steenrod,  7 
Iowa,  339 ;  Torrance  v.  Torrance,  53  Penn.  St.  505 ;  Long  v.  Burnett,  13 
Iowa,  28;  Sheldon  v.  Newton,  3  Ohio  (N.  S.)  495;  Stokes  ■;;.  Middleton,  4 
Dutch.  (N.  .1.)  33;  Gerrard  «.  Johnson,  13  Ind.  G3G;  Carter  r.  Waugh,  43 
Ala.  453 ;  Satcher  n.  Batcher's  Admr.  41  Ala.  2G. 

''Frazier  v.  Stecnrod,  7  Iowa,  340;  Weed  v.  Edmonds,  4  Ind.  4G8;  TThcat- 
ley  ■».  Tutt,  4  Kan.  195. 

'3  Vandevere  v.  Baker,  13  Pcnu.  St.  12G. 


JUDICIAL   SALES   OF   EE^UL,   morERTY.  37 

liiial,  and  so  far  as  respects  sucli  errors  or  irregularities  are 
valid ;^  then  tlie  record  is  absolute  verity  in  all  collateral  jjro- 
ceedino-s  if  jurisdiction  lias  properly  attached. ^ 

§  76.  If  the  court  bo  one  of  general  jurisdiction  and  the 
property  be  within  its  jurisdictional  territorial  limits,  then  it 
has  poM'cr  to  take  jurisdiction  of  the  cause  and  of  the  subject 
matter.  Or  if  it  be  a  court  of  general  jurisdiction,  over  sub- 
ject matter  of  only  a  limited  description,  yet  its  jurisdiction 
is  general  j^ro  tanto,  and  the  same  power  exists  in  the  court, 
over  such  subject  matter,  when  jurisdiction  has  actually  at- 
tached, as  if  the  court  were  a  court  of  imrestricted  general 
jurisdiction ;  and  the  same  presumptions  then  arise  from  the 
record  as  from  the  record  of  a  court  of  full  general  jurisdic- 
tion. ^     And  if  there  be  no  appeal,  the  adjudication  is  final. 

§  77.  In  either  case,  the  court  being  thus  clothed  with 
legal  capacity  to  take  jurisdiction  of  the  subject  matter,  then 
to  give  it  actual  jurisdiction  and  also  jurisdiction  of  the 
particular  case,  whether  in  personam,  or  in  rem,  there  must 
be  filed  a  petition,  or  bill,  or  Avhat  else  stands  in  lieu  thereof, 
correctly  describing  and  identifying  the  property  sought  to 
be  afiected,  or  sold,  and  also  avering  such  facts  as  are  necessary 
to  the  proper  action  of  the  court, "^  to  enable  it  to  make  the 

'  Goudy  V.  Hall,  30  111.  109 ;  Grignon's  Lessee  v.  Astor,  3  How.  319,  340 ; 
Morrow  «.  Weed,  4  Iowa,  77;  Thompson,  v.  Tolmie,  3  Pet.  1G9;  Todd  i\ 
Dowd,  1  Met.  (Ky.)  38 ;  Frazier  v.  Steenrod,  7  Iowa,  339 ;  Pursley  v.  Hays, 
23  Iowa,  128;  Boswell  «.  Sharp,  15  Ohio,  447;  Walker  ■».  Morris,  14  Geo. 
333;  Elliott  v.  Piersol,  1  Pet.  340;  Dingledine  v.  Hershmau,  53  111.288; 
Beauregard  v.  New  Orleans,  18  How.  497. 

2  Grignon's  Lessee  v.  Astor,  3  How.  340 ;  Sheldon  v.  Newton,  3  Ohio  St. 
494;  Beauregard  v.  New  Orleans,  18  How.  341;  Thompson  v.  Tolmie,  3 
Pet.  1G5;  Goudy  v.  Hall,  30  111.  109;  Shriver's  Lessee  v.  Lynn,  3  How.  43; 
Covington  v.  Ingram,  C4  N.  C.  123;  Woods  v.  Lee,  31  La.  An.  505;  Southern 
Bank  v.  Humphrej-s,  47  111.  227;  Parker  v.  Kane,  33  How.  14;  Alexander  r. 
Nelson,  43  Ala.  463 ;  Dequindrc  v.  Williams,  31  Ind.  444. 

^  Pursley  V.  Hays,  33  loAva,  1 ;  Grignon's  Lessee  v.  Astor,  3  How.  339 ; 
Beauregard  v.  New  Orleans,  18  How.  503,  503. 

*  lb.;  Jackson  v.  Robinson,  4  Wend.  43G;  Weed  ».  Edmonds,  4  Ind.  4G8; 
Finch  «.  Edmonson,  9  Texas,  504 ;  Shriver's  Lessee  v.  Lynn,  3  How.  43; 
Morrow  v.  Weed,  4  Iowa,  77;  Elliott  v.  Piorsoll,  1  Pet.  340;  Satcher  r. 
Satcher's  Admr.  41  Ala.  2G. 


oS  JUDICIAL   AND   EXECUTION   SALES. 

order  of  sale,  and  sale.  The  facts  are  sufficient,  if  good,  on 
demurrer. 

§  T8.  If  tlie  proceedings  be  also  in  personam,  witli  intent 
to  bind  the  person  of  the  party  proceeded  against,  as  well  as 
to  act  in  rem  upon  the  j^roperty,  as  is  some  times  the  case, 
then  there  mnst  be,  to  make  a  personal  judgment  valid,  per- 
sonal service  on  the  o^vner  of  the  property  so  as  to  get  juris- 
diction of  the  person.  Without  such  personal  service  or 
notice,  if  there  be  no  appearance,  any  judgment  or  decree 
in  jpersonmn  will  be  void.  But  the  judgment  or  decree  in  rem 
will  be  binding  notwithstanding. 

§  79.  If  however  the  proceeding  be  purely  in  rem,  then 
such  other  notice,  if  any,  as  is  required  by  the  local  law,  must 
be  given,  and  this  too  in  addition  to  the  filing  of  a  petition. 
Tlie  latter  is  to  confer  jurisdiction  of  the  particular  case.  But 
such  notice  will  be  inferred  after  decree  if  there  is  no  statute 
requiring  it  to  appear  in  the  record  and  the  contrary  of  its 
existence  be  not  ascertainable  from  the  record  and  proceedings 
of  the  ease,  and  jurisdiction  shall  have  actually  attached  by  a 
petition  with  proper  averments  and  allegations  sustainable  on 
demurrer.  ^ 

§  80.  If  the  jH'oceedings  be  in  rem  for  the  sale  of  a  dece- 
dent's lands,  and  no  notice  as  a  condition  to  the  validity  of  the 
sale  be  by  law  required,  then  none  is  necessary  to  such  validity, 
but  only  as  against  error,  although  a  directory  law  may  require 
notice.     "The  power  of  the  court "^  is  over  the  property,  or 

'  Grignoii's  Lessee  'v.  Astor,  3  How.  319,  340 ;  Simpson  t.  Hart,  1  Johns. 
Ch.  91 ;  Cooper  «.  Sunderland,  3  Iowa,  114;  Stokes  «.  Middleton,  4  Dutch. 
(N.  J.)  32;  Sheldon  v.  Newton,  3  Ohio  St.  494. 

2  In  Beauregard  ■».  New  Orleans,  18  How.  497,  the  court  say :  "  And 
when  the  object  is  to  sell  the  real  estate  of  an  insolvent  or  embarrassed 
succession,  the  settled  doctrine  is  there  are  no  adversary  parties.  The 
proceeding  is  in  rem.  The  administrator  represents  the  land.  They  are 
analogous  to  proceedings  in  admiralty  where  the  only  question  of  juris- 
diction is  the  power  of  the  court  over  the  thing  —  the  subject  matter 
before  them  —  without  regard  to  the  parties  who  may  have  an  interest  in 
it.  All  the  world  are  parties.  In  the  Orphans'  Court  and  all  the  courts 
which  have  power  to  sell  the  estates  of  decedents,  their  action  operates  on 
the  estate,  not  on  the  lieirs  of  the  intestate.  A  purchaser  claims  not  their 
(itle,  but  one  paramount.    The  estate  passes  by  operation  of  law." 


JUDICIAL    S.UJiS    OF    KEAL    TKOrEUTV.  39 

tiling,  before  it,  ''without  regard  to  the  parties  who  may  have 
an  interest  in  it.  All  the  world  are  parties."  The  estate 
passes  then  by  operation  of  law.  Tlie  power  of  the  law  lays 
hold  of  it  through  the  court  and  passes  the  title  by  a  right 
paramount  to  the  right  of  heirs ;  ^  and  as  we  conceive,  a  right 
which  underlies  all  titles.  The  same  right  and  power  that 
enables  the  state  to  establish  heirship  and  decide  who  shall  be 
a  dead  man's  heirs.  That  same  power  may  well  seize  on,  and 
fir:it  apply  the  property  to  payment  of  the  decedent's  debts, 
and  leave  the  heirship  or  inheritence  to  be  of  the  residue  only, 
and  to  be  liolden  b}^  a  right  which  the  law  postpones  until  the 
debts  are  paid. 

§  S 1.  In  Wisconsin,  where  the  case  of  Grignoii's  Lessee  v. 
Astor  originated,  the  state  courts,  seemingly,  repudiate  the 
rulings  in  that  and  its  kindred  cases,  and  hold  that  in  proceed- 
ings in  probate  by  an  administrator  for  sale  of  a  decedent's 
lands  to  pay  debts,  the  record  should  show  notice  to  the  heirs 
at  law  to  have  been  given  according  to  the  requirements  of 
the  statute;  and  that  in  the  absence  of  such  showing  tlie  sale 
cannot  be  sustained,  even  in  a  collateral  proceeding. ^ 

'  Grignon's  Lessee  v.  Astor,  2  How.  319, 338 ;  Beauregard  v.  New  Orleans, 
18  How.  497,  503 ;  Satcher  «.  Satclier's  Admr.  41  Ala.  26 ;  Sheldon  v.  New- 
ton, 3  Ohio  St.  494;  McPherson  v.  Cunliffe,  11  S.  &  R.  432;  Perkins  r. 
Fairfield,  11  Mass.  227;  Saltonstall  v.  Riley,  28  Ala.  164;  Paine  v.  Morland, 
15  Ohio,  442;  Robb  «.  Irwin,  15  Ohio,  698;  Benson  v.  Cilly,  8  Ohio  St.  614; 
Borden  v.  The  State,  6  Eug.  519;  Tongue  v.  Morton,  6  Har.  &  J.  23;  Rice 
V.  Parkman,  16  Mass.  328;  Williamson  v.  Leland,  2  Pet.  657;  Sohier  ». 
Mass.  Genl.  Hos.  3  Gush.  487. 

'  Gibbs  V.  Shaw,  17  Wis.  197.  In  this  case,  Patne,  J.,  delivers  the 
opinion  of  the  Supreme  Court  of  Wisconsin  in  the  following  terms: 
"Without  passing  upon  any  of  the  other  objections  to  the  validity  of  the 
sale  of  real  estate  by  the  first  administrator.  Wells,  we  think  that  sale  must 
be  held  void,  because  the  record  fails  to  disclose  any  notice  to  the  heirs  at 
law  of  the  time  and  place  of  hearing  the  application.  The  statute  required 
such  notice  to  be  given  before  any  such  application  should  be  heard. 
Statutes  of  1839,  p.  317,  Sec.  29.  The  record  offered  to  sustain  that  sale 
contains  no  proof  whatever  that  any  notice  was  given.  The  only  thing 
upon  which  it  could  be  assumed  is  a  fragment  of  a  recital  in  the  order 
granting  the  license,  to  the  effect  that  it  appeared  to  the  judge  that  the 
notice  had  been  'published  in  the  Wisconsin  Enquirer,'  but  leaving 
blanks  at  all  the  places  where  the  facts  should  have  been  specified,  show- 


40  JUDICIAL    AXD    EXECUTION   SALES. 

§  S2.  But  the  previous  case  of  Starh  v.  Brown, '^  referred 
to  in  Crlhhs  V.  Shcnv,  as  basis  for  tlie  latter  ruling,  does  not 
accord  \vitli  tlie  latter.  It  is  not  in  point.  For  although  the 
court  hold  therein  that  to  confer  jurisdiction  and  make  a  valid 
decree  and  sale,  the  heirs  must  be  made  j)arties  and  must  be 
brought  into  court  bj  notice  or  by  some  legal  means  or  other; 
yet,  the  case  in  12th  AViseonsin,  in  which  this  ruling  is  made, 
■was  a  case  of  foreclosure  of  a  mortgage,  brought  against  the 
administrator  of  the  deceased  mortgagor,  in  which  the  heirs 
at  law  were  not  made  parties,  while  the  case  of  Cr'tblsv.  Shaiv 
was  a  proceeding  in  probate  by  the  administrator  to  sell  a 
decedent's  lands  under  the  statute  for  payment  of  debts. 

The  court  expressly  draw  this  distiction  betwixt  the  two 
cases,  in  delivering  the  opinion  in  Stark  v.  Broion,  and  decline 
to  discuss  or  decide  upon  the  correctness  of  the  ruling  in 
Grignoii's  Lessee  v.  Astor.^  To  illustrate  which  we  subjoin  in 
a  note  so  much  of  the  o-'oinion  in  Stark  v.  Broion  as  beai's 
■upon  that  point. ^ 

ing  such  publication  to  liave  been  according  to  the  statute.  And  -v\'ithout 
determining  whether  a  complete  recital  of  all  the  facts  necessary  to  show 
a  proper  notice  in  an  order  granting  a  license  by  a  probate  judge  would 
be  sufficient  to  sustain  the  proceedings,  in  the  absence  of  any  other  proof 
of  notice  in  the  record,  it  seems  clear  that  such  a  recital  as  this  cannot  be 
so,  it  being  evidently  incomplete  on  its  face,  and  failing  to  show  or  even 
recite  the  necessary  facts.  The  question  then  is,  whether  an  administra- 
tor's sale,  under  a  license  from  the  probate  court,  can  be  sustained  where 
the  record  fails  to  show  notice  to  the  heirs  at  law  as  required  by  statute  ? 
And  we  arc  of  the  opinion  that  it  cannot  be.  There  may  be  some  cases 
where  it  is  intimated  that  such  notice  is  not  jurisdictional.  But  we  regard 
the  opposite  doctrine  as  established  by  the  weight  of  authority,  and  resting 
upon  the  soundest  principles,  and  that  it  is  also  established  that  the  rec- 
ords of  probate  courts  must  show  jurisdiction  in  order  to  sustain  their 
proceedings." 

'  13  Wis.  582. 

="  Stark  V.  Brown,  12  Wis.  572,  582,  583.  One  class  of  these  cases— sales 
in  probate— rest  on  the  paramount  power  of  the  courts  and  of  the  law; 
the  other  case— Stark  ■».  Brown— rests  in  a  mortgage  contract. 

'"'Counsel  relied  upon  the  case  of  Grignon's  Lessee  il  Astor,  2  IIow. 
319,  as  establishing  the  proposition  'that  in  a  proceeding  to  sell  the  real 
estate  of  an  indebted  intestate,  there  are  no  adversary  parties,  the  pro- 
ceeding is  in  rem,  and  the  administrator  represents  the  land,'  etc.  It  is 
true  that  the  court,  in  that  case,  asserted  that  doctrine,  and  held  tliat  the 


JUDICIAL   SiMJ':S   OF    REAL   IT.OrEliTV.  41 

§  83.  Now,  the  state  court  case,  wliicli  seemingly  overruled 
Grignon's  Lessee  v.  Astor,  is  not  a  parallel  case;  being  a  case 
for  foreclosure  of  a  mortgage  it  rested  in  contract  and  was 
prosecuted  in  the  court  of  general  chancery  jurisdiction  accord- 
ing to  the  practice  in  adverse  litigation,  whilst  that  of  Grig- 
non's Lessee  and  its  kindred  cases  are  conducted  in  probate, 
nnder  the  special  enactments  conferring  probate  powers  over 
the  land  of  a  decedent. 

§  84.  ISTotwithstanding  these  rulings,  some  of  which  are 
by  the  highest  court  in  the  nation,  and  which  we  conceive  to 
be  the  better  doctrine,  there  are  numerous  decisions  to  the 

provision  in  tlie  statute  requiring  notice  to  be  given  to  tlie  parties  inter- 
ested before  tlie  court  sliould  pass  upon  the  application,  did  not  affect  its 
jurisdiction.  Wlietlier  that  is  the  haw  or  not  in  this  state  with  respect  to 
sales  by  administrators,  wc  shall  not  now  attempt  to  decide.  It  is  certainly 
not  in  conformity  with  a  long  list  of  adjudications  that  might  be  cited, 
among  which  are  the  following :  Bloom  v.  Burdick,  1  Hill,  130;  Sherry  v. 
Denn,  8  Blackf.  542 ;  Given  v.  McCarrol,  7  S.  «&  M.  351 ;  Lessees  of  Adams 
V.  Jeffries,  12  Ohio,  253;  Messenger  v.  Kintner,  4  Bin.  97;  Schneider  v. 
McFarland,  2  Comst.  459 ;  Bank  v.  Johnson  and  others,  7  S.  &  M.  449. 
But  we  do  not  feel  called  upon  to  discuss  the  correctness  of  that  decision 
for  the  reason  that  it  must  be  held  to  relate  only  to  a  proceeding  by  an 
administrator,  under  the  statute,  to  sell  the  real  estate  for  the  payment  of 
debts.  When  the  court  said  that  the  administrator  represented  the  land, 
they  meant  in  that  proceeding.  And  it  would  be  entirely  unwarrantable 
to  say  that  they  intended  to  assert  that  he  represented  it  for  all  purposes, 
60  that  a  foreclosure  suit,  to  which  he  alone  was  a  party,  would  divest  the 
right  of  the  heirs.  There  is  a  great  difference  between  the  two  cases.  In 
the  one  the  statute  expressly  authorizes  and  requires  him  to  proceed  for 
the  purpose  of  making  a  sale.  The  design  is  to  pay  the  debts  of  the 
estate,  which  is  one  of  his  most  important  duties.  In  the  other  case  it  is 
conceded  that  there  is  no  statute  expressly  requiring  or  authorizing  him 
to  be  made  a  party  to  a  foreclosure,  and  his  character  as  a  rejiresentative 
of  the  land  for  that  purpose  is  sought  to  be  derived  entirely  from  the 
rights  which  the  law  gives  him  as  to  the  possession  and  as  to  obtaining  a 
license  to  sell  on  a  certain  contingency.  Even  if  the  case  in  2d  Howard 
should  be  held  to  establish  the  doctrine  that  on  the  direct  statutory  pro- 
ceeding by  him  to  effect  a  sale  for  the  payment  of  debts,  he  is  to  be 
considered  as  the  representative  of  the  land  for  all  the  parties  interested, 
so  that  the  judgment  would  not  be  void,  though  such  other  parties  had  no 
notice,  we  do  not  by  any  means  think  it  can  have  that  effect  with  respect 
to  foreclosure  suits,  or  any  other,  by  wliich  the  title  to  property  is  sought 
to  be  affected." 


42  JUDICIAL   AISID   KXECUnON    SALES. 

contrary,  wherein  it  is  held  that  jurisdiction  is  in  all  cases 
alike  necessary  over  both  the  subject  matter  of  the  proceedin<^ 
and  of  the  persons  of  those  in  interest;  and,  therefore,  decrees 
and  sales  without  jurisdiction  in  some  manner  first  obtained, 
as  well  of  the  j^erson,  as  of  the  particular  case,  are  simply 
Yoid.i 

§  85.  This  question  as  to  the  necessity  of  j)ersonal  jurisdic- 
tion in  probate  for  sale  of  a  decedent's  lands  came  up  in  tlie 
Iowa  Supreme  Court,  at  December  term,  1869,  in  Good  v. 
Norley.  ^ 

After  great  deliberation  and  a  full  investigation  of  the  adju- 
dications, the  court  were  equally  divided  as  to  whether  juris- 
diction of  the  person  of  those  in  interest  is  necessary,  under 
the  Iowa  statute,  to  the  validity  of  an  administrator's  sale  of 
lands  for  payment  of  a  decedent's  debts.  By  reason  of  sucli 
diversity  of  opinion  the  decree  appealed  from  was  affirmed, 
and,  also,  by  one  of  the  Justices  deciding  that  jurisdiction 
had  attached  in  the  probate  court  over  the  persons  of  those 
now  appealing  to  the  Supreme  Court. 


IV.     TiTE  TriLE  Passes  by  Operation  of  Law. 

§  80.  The  title  passes  to  the  purchaser  at  judicial  sale  by 
operation  of  law.^     So  it  does  from  the  ancestor  to  the  heir,'^ 

'  French  v.  Hojt,  6  N.  H.  370 ;  Dakin  v.  Hudson,  6  Cow.  222 ;  Babbit  v. 
Doe,  4  Ind.  350;  Doe  v.  Anderson,  5  lud.  34;  Sibley  v.  Wells,  16  N.  Y. 
185;  Doe  v.  Bowen,  8  Ind.  198;  Bloom  v.  Burdick,  1  Hill.  140;  Shelden  «. 
Wright,  1  Seld.  518;  Ridgway  v.  Coles,  G  Bosw.  486;  Corwin  v.  Merritt,  3 
Barb.  341;  Stark  v.  Brown,  12  Wis.  572;  Stelzman  v.  Pacquette,  13  Wis. 
291 ;  Gibson  v.  Shaw,  17  Wis.  197. 

2  Good  V.  Norley,  27  Iowa,  188.  (See  a  more  particular  statement  of  this 
case,  post.  c.  IV,  No.  4.) 

=  3Bouvier,  131,  132;  McPherson  v.  Cunliff,  11  S.  &R.  428;  Grignon's 
Lessee  v.  Astor,  2  How.  338;  Shelden  v.  Newton,  3  Ohio  St.  494;  Holloway 
V.  Richardson,  13  111.  171. 

*  Bank  of  Hamilton  v.  Dudley's  Lessee,  2  Pet.  523 ;  Drinkwater  v.  Drink, 
water's  Admr.  4  Mass.  358;  Shelden  v.  Newton,  3  Ohio  St.  474;  Holloway 
r.  Richardson,  13  111.  171. 


JUDICIAL   SALES   OF    EEAL   rKOPEETY.  43 

but  subject  first  to  the  paramount  right  of  government, 
through  its  courts,  to  apply  it  to  pa;yTuent  of  ancestral  debts, i 
without  notice  to  anj  one,  if  such  shall  be  the  legislative 
policy. 

§  87.  Tlie  government  has  the  same  power  to  direct  the 
sale  of  lands  for  debts,  before  or  after  the  owner's  death,  as  it 
has  to  declare  heirship  by  law,  without  which  there  would  bo 
no  heirship  and  no  inheritence.  We  conceive  that  the  power 
to  do  the  one  and  the  other,  and  also  to  make  sales  in  partition, 
is  found  in  a  paramount  right  in  government  which  underlies 
all  title,  and  to  which  all  title  is  subject,  for  the  public  good.^ 

'  Bank  of  Hamilton  v.  Dudley's  Lessee,  3  Pet.  532;  Newell  v.  Nowell,  8 
Greenl.  223;  Driukwater  «.  Drinkwater's  Admr.  4  Mass.  358 ;  Vansyckle  v. 
Richardson,  13  111.  171 ;  Wolf  v.  Robinson,  20  Mo.  459 ;  Stillman  «.  Young, 
IG  111.  318;  Sheldon  v.  Newton,  3  Ohio  St.  494;  (twice)  Wilkinson  v.  Leland, 
3  I'ct.  627;  Watkins  v.  Holman,  16  Pet.  25;  Gore  v.  Brazier,  3  Mass.  523. 

2  In  Vansyckle  v.  Richardson,  13  111.  173,  the  court  say :  "  The  real  estate 
descends  to  the  heir  with  this  charge  resting  upon  it.  He  cannot  incum- 
ber  or  alien  it  to  the  prejudice  of  the  rights  of  creditors.  He  acquires  a 
vested,  but  not  an  absolute  interest  in  the  land.  He  takes  a  dcfeasable 
estate,  liable  to  be  defeated  by  a  sale  made  by  the  administrator  in  the  due 
course  of  administration.  He  has  no  just  claim  to  the  land  until  the 
indebtedness  of  his  ancestor  is  fully  discharged.  He  acquires  an  absolute 
title  only  to  what  remains  af.er  the  debts  ai-e  extinguished." 


CHAPTEE    IV. 

THE  SALE. 

T.  By  -whom  to  be  Madk. 

II.  IIow  TO  BE  Made. 

III.  "Who  may  kot  Btjy. 

IV.  Notice  of  sale:  Adjouunment. 
V.  Coxfiumation. 

YI.  When  title  Passes. 

VII.  When  kot  aided  ix  Equity. 

VIII.  Not  affected  by  Reversal  op  Deciiee. 

IX.  IIow  affected  by  Limitation. 

X.  IIow  affected  by  Statute  of  Frauds. 

XI.  When  valid  by  lapse  of  Time. 

XII.  IIow  Enforced  against  the  Purchaser. 

XIII.  How  carried  into  Effect  in  Favor  of  the  Purchaser. 

XIV.  Ratification  by  the  Party  Affected 

I.     By  avhom  to  be  Made. 

§  8S.  It  is  a  general  priiicij)le,  applicable  to  all  judicial 
sales,  tliat  they  are  to  be  conducted,  unless  diiFerently  provided 
by  statute,  by  a  |)Grson  designated  for  that  purpose  in  the 
license,  order,  or  decree,  or  under  liis  immediate  direction  and 
superintendence,  but  he  may  employ  an  auctioneer  to  cry  tlie 
sale  if  it  be  done  in  bis  presence. ^ 

§  89.  "Sucli  sales,"  says  the  court,  in  Blossom  v.  Hailroad 
Company ^^  "must  be  made  by  the  person  designated  in  the 
decree,  or  under  bis  immediate  direction  and  super\dsion,  but 
lie  may  employ  an  auctioneer  to  conduct  tlie  sale,  if  it  be  made 
in  bis  presence." 

§  90.     And  a  subsequent  part  of  tlie  same  decision  tlie  court 

'  "Williamson  ■».  Berry,  8  How.  495,  544 ;  Blossom  v.  R.  R.  Co.  3  Wall.  205 ; 
Reynolds  «.  Wilson,  15  111.  394;  Heycr  v.  Deaves,  2  Johns.  Cli.154;  Gould »;. 
Garrison,  48  111.  2G0.  The  decree  must  be  conformed  to  and  the  statute 
regulatin.!?  execution  sales  docs  not  apply.    Blakcly  t.  Abert,  1  Dana,  185. 

=  3  Wall.  205. 

(44) 


THE   SALE.  4:5 

say:  "Judicial  sales  arc  always  regarded  as  under  the  control 
of  tlic  court,  subject  to  the  power  to  set  them  aside,  or  to 
open  the  biddings  at  any  time  before  the  sale  is  confirmed,  if 
there  be  proper  ground  for  such  interference;"  and  that  "  even 
after  the  sale  is  made,  it  is  not  final  until  a  report  is  made  to 
the  court  and  it  is  approved  and  confirmed." ^ 

II.     IIov/  TO  DE  Made. 

§  91.  The  sale  is  to  be  at  public  auction,  and  to  the  highest 
real  bidder-  unless  it  be  otherwise  authorized  by  the  court,  as 
is  sometimes  done.  It  must  be  for  cash,  unless  the  court  order 
other  terms,  which  it  may  do  if  deemed  more  beneficial  to 
those  in  interest.''  But  it  must  be  for  money,  whether  for  cash 
in  hand  or  on  a  credit.  If  the  transaction  should  be  for  any 
other  consideration  it  would  be  but  a  barter.* 

§  92.  "  Sale,"  say  the  Supreme  Court  of  the  United  States, 
"  is  a  word  of  legal  import  both  at  law  and  in  equity.  It 
means  at  all  times  a  contract  between  parties  to  give  and  to 
pass  rights  of  property  for  money,  Avliich  the  buyer  pays,  or 
promises  to  pay,  to  the  seller,  for  the  thing  bought  and  sold."^ 
In  the  same  case,  Williamsou  v.  Bernj^  the  court,  further,  as  to 
the  manner  of  selling,  say: 

"  The  usual  mode  of  selling  property  under  decree  or  order 
in  chancery  is  a  direction  that  it  shall  be  sold  with  the  approval 
of  a  master  in  chancery,  to  whom  the  execution  of  the  decree 

1  Ibid. 

^  Veazic  «.  Williams,  8  Ho^y.  154;  2  Kent,  Com.  537,  538. 

3  Foster  -B.  Thomas,  21  Couu.  285;  Reynolds  «.  Wilson,  15  III.  39G;  Sedg- 
■wick  v.  Fish,  Hop.  Ch.  594. 

*  Sedgwick  v.  Fish,  Hop.  Ch.  594 ;  Wilson  «.  Reynolds,  15  111.  394 ;  Maples 
v.  How,  3  Barb.  Ch.  611;  Foster  v.  Thomas,  21  Conn.  285;  Williamson  t. 
Berry,  8  How.  49G,  544;  Noy,  Max.  Ch.  42;  Bigley  x.  Eisher,  63  Penn.  St. 
155;  Hushmackerw.  Harris'  Admr.  2  Wright,  Pa.  498;  Hilliard,  Sales, 
1230;  Shep.  Touch.  244. 

'Williamsons.  Berry,  8  How.  49G,  544;  Noy,  Max.  Ch.  42,  Risley  r. 
Richer,  63  Penn.  St.  155 ;  Hushmacker  «.  Harris'  Admr.  2  Wright,  Pa.  498 ; 
Hilliard,  Sales,  1230;  Sedgwick  v.  Fish,  Hop.  Ch.  594.  By  the  court: 
"The  suggestion  that  credit  may  produce  a  higher  price  is  equally  appli. 
cable  to  all  sales.  But  judicial  sales  arc  not  in  general  made  on  credit 
without  the  consent  of  parties." 


4G  JUDICIAL  A^^'D   EXECUTION   SALES. 

in  that  particular  Las  becii  confided.  It  matters  not  wlictlicr 
the  sale  is  j^ublic  or  private  by  a  person  authorized  to  make  it, 
Not  that  the  approbation  of  the  master  in  either  case  com- 
pletes a  title  to  the  purchaser.  It  is  only  the  master's  approval 
of  the  sale,  and  is  one  step  towards  getting  a  title.  Before  how- 
ever, he  can  get  a  title,  he  must  get  a  report  from  the  master  that 
he  approves  the  sale,  or  that  he  was  the  best  bidder,  accordingly 
as  the  sale  may  have  been  made  privately  or  at  auction.  That 
report  then  becomes  the  basis  of  a  motion  to  the  court  by  the 
purchaser  that  his  purchase  may  be  confirmed."  1       -x-      ^      -h: 

§  93,  The  court  then,  after  laying  down  certain  premises 
not  material  to  our  immediate  subject,  adds,  that  "we  have 
been  thus  particular,"  (in  reference  to  the  sale  and  the  master's 
duties,)  "  for  the  purpose  of  showing  the  office  of  the  master 
in  relation  to  a  sale,  and  what  is  meant  by  subjecting  a  sale  to 
the  approval  of  a  master,  and  to  show  that  such  a  sale  until 
approved  by  the  master  and  confirmed  by  the  court,  gives  no 
title  to  a  purchaser  of  an  estate  which  he  may  have  bargained 
to  buy,  We  do  not  mean  to  say  that  such  cautionary  proceed- 
ings upon  sales  under  decrees  and  orders  in  chancery  may  not 
be  dispensed  with  by  a  special  order  of  the  chancellor  to  pre- 
termit them,  but  that  such  are  the  proceedings  when  no  special 
order  has  been  given,"  ^ 

§  94:.  Several  persons  may  join  together  and  lawfully  bid 
as  a  unit  if  done  in  good  faith.  "  It  is  not  every  joint  bidder 
or  partnership  among  bidders  at  a  sale  under  a  decree  in 
chancery  (say  the  court  in  Holmes  v.  Holmes,)  that  is  corrupt 
and  fraudulent.  Such  joint  or  partnership  bidding  may  be 
perfectly  legitimate."  ^ 

'Williamson  v.  Berry,  8  How.  546. 

*  Williamson  v.  Berry,  8  How.  54G. 

^Holmes  v.  Holmes,  3  Rich.  Eq.  61;  Smith  v.  Greenlee,  3  Dev.  128; 
National  Bank  v.  Sprague,  20  N.  J.  159,  1G9.  In  the  case  of  Holmes  v. 
Holmes,  it  is  said:  "To  render  them  unlawful  and  void,  there  must  be  a 
fraudulent  intent  to  depress  and  chill  the  sale,  to  obtain  the  property  at  an 
under  value,  or  to  obtain  other  undue  and  unconscientious  advantages. 
An  estate  might  be  offered  for  sale  which  neither  of  two  joint  bidders 
would  be  able  separately  to  purchase.  Or,  it  might  be  that  neither  of  two 
joint  bidders,  though  able  as  to  pecuniary  means,  would  desire  to  pur- 


THE   SALE.  47 

§  95.  But  combinations  to  advance  or  reduce  the  price  of 
the  property,  and  all  by-bidding,  is  illegal  and  fraudulent. ^ 
A  minimum  price  may  be  fixed  and  made  public  below  wliicli 
the  property  will  not  be  allowed  to  go,  and  if  made  public  it 
will  not  be  legally  objectionable.  But  without  being  made 
public  it  is  in  itself  fraudulent.^ 

§  9G.  By-bidding  is  fraudulent.  It  deceives.  It  misleads. 
It  involves  a  falsehood.  In  the  language  of  the  United  States 
Supreme  Court,  in  Veazie  v.  Williams,^  it  "violates,  too,  a 
leading  condition  of  the  contract  of  sales  at  auction,  which  is 
that  the  article  shall  be  knocked  off  to  the  highest  real  bidder 
without  puffing," 

§  97.  Tlie  court  will  sometimes  appoint  a  bidding  to  pre- 
vent an  estate  from  going  under  value,  on  special  showings  to 
the  court.  4 

§  98.  Judicial  sales  are  in  no  wise  subject  to  the  operation 
of  either  valuation  laws  or  redemption  laws  fixed  by  statute 
relative  to  sales  at  law  on  writs  of  execution,^  unless  the  statute 
declare  them  so. 

§  99.  InWoods  V.  Monell,^  Chancellor  Kent  lays  down  the 
rule  in  execution  sale,  "  that  where  a  tract  of  land  is  in  parcels, 
distinctly  marked  for  separate  and  distinct  enjojnnent,  it  is  in 
general  tlie  duty  of  the  officer  to  sell  by  parcels,  and  not  the 
whole  tract,  in  one  entire  sale. 

This  rule  had  been  j^rcviously  asserted  in  lioicJey  v.  Webh, 

chase  the  whole  of  the  estate  offered  for  sale,  though  each  would  he 
desirous  to  become  the  owner  of  a  part.  Such  persons,  if  not  permitted 
to  unite  in  their  bidding  would  not  enter  into  the  competition  at  all.  To 
adopt  so  stringent  a  rule  as  that  contended  for,  in  reference  to  sales  in 
chancerj',  would,  in  many  instances,  have  the  effect  of  diminishing,  instead 
of  enhancing  the  prices." 

^  Veazie  v.  Williams,  8  IIow.  154;  Holmes  v.  Holmes,  3  Eich.  Eq.  Gl. 

-  Veazie  v.  Williams,  8  How.  153 ;  3  Kent,  Com.  538,  539.  Eoss  on 
Sales,  311. 

3  Veazie  v.  Williams,  8  How.  154;  2  Kent,  Com.  538,  539. 

♦  2  Daniels  Chy.  1448. 

'Blakely  v.  Abcrt,  1  Dana,  185;  Gould  v.  Garrison,  48  HI.  258. 

« 1  Johns.  Ch.  505. 


48  JUDICIAL   AND    EXECLTIOX    SALES. 

ix^Executors  of  Stead  v.  Course,  and  is  referred  to  by  Chancellor 
Kent  with  aj)probation  in  AVoods  v.  Monell.^ 

§  100.  Unless  there  be  special  reasons  to  the  contrary,  (or 
the  court  otherwise  direct,)  the  sale,  when  made  in  parcels, 
should  be  made  in  such  order  as  the  debtor  may  desire." 

§  101.  It  is  the  duty  of  the  person  selling  to  sell  in  such 
order  as  will  be  likely  to  produce  the  largest  amount  for  the 
smallest  quantity  of  lands,  in  his  best  judgment.  But  he  must 
exercise  a  sound  discretion. 

Ordinarily,  where  a  judicial  sale  of  several  lots  or  parcels  of 
land  is  being  made  to  satisfy  a  money  decree,  it  is  the  duty  of 
the  referee  or  person  conducting  the  sale,  not  only  to  sell  in 
parcels,  but  to  also  respect  the  wishes  of  the  debtor  as  to  the 
order  in  which  the  lots  should  be  sold,  if  there  is  no  good 
reason  to  believe  such  order  of  sale  will  prove  injurious.  ^ 

§  102.  And  if  the  debtor  and  creditor  cannot  agree  upon 
the  order  in  which  the  property  shall  be  sold,  either  party  may 
apply  to  the  court  for  instructions  to  the  referee,  and  if 
deemed  proper  they  will  be  given. ^  Such  sales  proceed  under 
the  control  and  supervision  of  the  court,  and  it  will  "  scrutinize 
the  conduct  of  a  party"  placed  in  a  position  wdiere  he  may 
sacrifice  the  interest  of  another  in  a  manner  not  easily  to  detect. 
"  The  unfortunate  debtor,"  say  the  court,  in  King  v.  Piatt, 
"  is  not  beneath  its  protection."  And,  "it  will  not  tolerate  the 
slio'htest  advantaoje  over  him."^ 

§  103.  "  It  is  clearly  competent  for  the  court  to  2:)rescribe 
the  mode  and  terms"  of  sale,  "provided  it  requires  as  much 
of  the  executor  or  administrator  as  the  statute  contemplates," 
and  these  requirements  must  be  conformed  to  by  the  person 

'  Am.  Ins.  Co.  v.  Oakly,  9  Paige,  259 ;  Wood  «.  Moncll,  1  Johns.  Cli.  505 ; 
Pumyon  V.  N.  Ark.  In.  Rub.  Co.  4  Zabr.  473;  Penn  v.  Craig,  1  Green.  Ch. 
495;  Mohawk  Bk.  v.  Atwater,  2  Paige,  54;  Meeker  v.  Evans,  25  IlL  322; 
Rowley  v.  Webb,  1  Binney,  Gl ;  Executors  of  Stead  v.  Course,  4  Crauch, 
309;  Laughlin  v.  Schuyler,  1  Neb.  409. 

^  King  v.  Piatt,  37  N.  Y.  155. 

'  King  V.  Piatt,  37  N.  Y.  155 ;  Cauffman  v.  Sayre,  2  B.  IMon.  C09. 

^Kingt).  Piatt,  37  N.Y.  155, 

'-  Ibid,  and  Collier  v.  Whipple,  13  Wend.  229,  230. 


THE    SALE.  49 

conductijig  tlic  salc.^  And  so,  also,  in  regard  to  tlic  place  of 
sale."  If  made  at  a  different  place  than  the  one  ordered,  it 
will  be  invalid;  tlie  purchaser  cannot  enforce  it,  if  opposed, 
and  will  not  be  compelled  to  perfect  it  if  he  oly'ects.^  And, 
quere,  if  even  confirmation  of  a  sale  so  made  at  an  unauthoi'- 
ized  place,  will  render  it  valid>  If  the  manner  and  time  of 
sale  are  not  prescribed  bj  the  decree,  then  they  are  vested  in 
the  sound  discretion  of  the  person  or  officer  selling/' 

§  104.  So  far  as  the  terms  and  conditions  of  sale  are  not 
regulated  by  the  decree,  the  master  or  j)erson  charged  with 
the  conduct  of  the  sale  may  "adopt  such  means  to  prevent 
sham  bidding  "  as  have  a  tendency  to  promote  fairness  and  to 
prevent  fraud,  and  which  may  give  confidence  to  f;iir  and 
honest  bidders  as  to  their  being  justly  dealt  with." 

But  all  such  regulations,  as  also  the  action  and  conduct  of 
the  person  conducting  the  sale,  are  subject  to  the  scrutiny 
of  the  court,  whose  judicial  sanction  thereof  may  be  given,  or 
denied,  at  discretion,  and  confirmation  ordered  or  refused 
accordingly. 

§  105.  A  sale  made  under  the  statute  of  Indiana  which 
submits  the  matter  of  selling  in  parcels  to  the  judgment  of 
the  officer  or  person  conducting  the  sale,  will  not  be  set  aside 
by  reason  of  the  land  not  being  sold  in  parcels,  unless  it  be 
made  to  appear  that  the  action  of  the  officer  was  in  that  respect 
fraudulent. 

Unless  it  be  made  to  appear  that  the  officer  selling  acted 
otherwise  than  in  accordance  with  his  honest  judgment,  and 
in  a  fraudulent  manner,  the  purchaser  has  aright  to  the  benefit 
of  his  purchase.'^ 

§  lOG.     "When  separate  i)arcels  of  land  are  contiguous  to 

'  Reynolds  v.  Wilson,  15  111.  394;  Whcatly  v.  Tutt,  4  Kau.  195;  Gould  t. 
C.arrison,  48  111.  258;  Williamson  v.  Beny,  8  How.  544. 

=■  Tally  V.  Starke,  6  Gratt.  339. 

=  Tally  V.  Starke,  G  Gratt.  839;  Bethel  v.  Bethel,  G  Bush  (Ky.)  G5,  09. 

•»  Minnesota  Co.  v.  St.  Paul  Co.  2  Wall.  C09;  Bethel  ».  Bethel,  G  Bush 
(Ky.)  G5. 

"  Blossom  V.  R.  R.  Co.  3  Wall.  19G,  208. 

'■  National  Bank  of  the  IMetropolis  v.  Sprague,  20  K  J.  Eq.  159,  1G5,  IGG. 

'  Wright  13.  Yetts,  30  Ind.  185,  183. 
4 


50  JUDICIAL   AND    ICXECUTIOX    SALES. 

cacli  otlicr,  and  being  properly  ofl'ered,  no  bid  is  received  for 
tliem  separately,  they  may  then  be  sold  together;  but  subject 
to  the  discretion  of  the  court  ordering  the  sale.^ 

III.     Wno  ]MAY  KOT  Buy. 

§  107.  The  person  selling  may  not  buy.  Xor  an}'  person 
concerned  or  employed  in  selling,  unless  by  leave  obtained 
from  the  court. 

The  rule  is  sweeping,  and  extends  to  all  agents,  commission- 
ers, trustees,  guardians,  administrators,  executors,  and  others, 
whether  selling  under  decree,  or  order  of  court,  or  otherwise, 
where  others  are  interested  in  the  property  or  in  the  proceeds 
of  sale.  They  cannot  be  buyer  and  seller;  bidder  and  crier; 
or  combine  other  like  incompatible  capacities  in  one  and  the 
same  transaction;  common  honesty  and  morality  forbid  it." 

§  lOS.  In  M'lchoucL  v.  Girocl,^  the  SujDreme  Court  of  the 
United  States  characterize  this  principle  in  the  following 
language:  "  The  rule,  as  expressed,  embraces  every  relation  in 
which  there  may  arise  a  conflict  between  the  duty  which  the 
vendor,  or  purchaser,  owes  to  the  person  M'itli  whom  lie  is 
dealing,  or  on  vrhose  account  he  is  acting,  and  his  own  indivi- 
dual interest."  The  general  rule,  the  court  say,  "■  Stands  upon 
the  great  moral  obligation  to  refrain  from  placing  ourselves 
in  relations  which  ordinarily  excite  a  conflict  between  self- 
interest  and  integrity."     In  such  conflict  the  law  interposes 

'  I'llartin  v.  Ilargadine,  46  111.  322. 

-  Davoc  V.  Fanning,  2  Johns.  Cb.  252;  Miclioud  «.  Girod  and  others,  4 
How.  555;  Wormsley  «.  Wornislcy,  8  Wheat.  421;  Ringo  v.  Biuus,  10  Pet 
209;  Oliver  v.  Piatt,  3  How.  033;  Kruse  v.  Stcffens,  47  111.  114;  McConnell 
T.  Gibson,  12  111.  128;  Thorp  v.  jMcCullum,  1  Gilm.  627 ;  Pensonneau  v. 
Bleakly,  14  111.  15 ;  Wickliff  v.  Kohinson,  18  111.  145 ;  Kobhins  «.  Butler, 
24111.387;  Dennis  «.  McCagg,  32  111.  429;  Miles  «.  Wheeler,  43  III.  123. 
"  The  foct  tliat  the  person  entrusted  by  the  law  to  make  the  sale  becomes 
the  purchaser,  whether  by  direct  or  indirect  means,  creates  such  a  pre- 
sumption of  fraud  as  requires  the  sale  to  be  vacated  if  application  is  made 
in  proper  time.  The  rule  is  regarded  as  firmly  established  by  this  court, 
and  it  is  deemed  unnecessary  to  review  the  authorities  or  to  discuss  ther 
reason  of  the  rule."    Kruse  v.  Stcffens,  47  111.  114,  115. 

'  Michoud  V.  Girod,  4  How.  503.  Sec,  also,  Wormsley  v.  Wormsley,  8 
Wheat.  421 ;  Prevent  v.  Gratz,  0  Wheat.  481. 


THE  SALi:.  51 

and  proliiblts  tlic  party  from  selling  to  himself,  and  buying 
from  liimsclf,  that  Avliich  his  duty  requires  him  to  sell  for 
account  of  others. 

§  109.  Such  is  the  doctrine  laid  down  in  the  case  of  Michoud 
V.  Girod  after  a  careful  examination  and  review  of  the  coniiict- 
ing  cases,  and  which  the  court  lay  down  as  not  only  the  rule 
in  England,  but  that  which,  since  the  decision  in  Davoo  v. 
F'anning,^  has  triumphed  "  over  all  qualifications  and  relaxa- 
tions in  the  United  States  to  the  same  extent  that  has  becii 
achieved  for  it  in  England  by  the  great  chancellor.  Lord 
Eldo]si."  Such  25iirchases  are  now  uniformly  regarded  by 
courts,  both  of  law  and  equity,  as  not  oiily  against  the  policy 
of  the  law,  as  has  been  said,  but  also  as  against  the  law^  itself, 
and  as  totally  inconsistent  with  fair  dealing. 

They  can  in  no  case  be  maintained  unless  made  by  leave  of 
the  court,  on  formal  aj)plication  therefor.  ^ 

§  110.  One  whose  duty  it  is  to  discharge  a  debt,  or  any 
portion  thereof,  may  not  buy  at  a  sale  brought  about  by  his 
own  deriliction  of  duty  in  not  paying  as  his  obligation  re- 
quires. 

Thus,  where  the  cashier  of  a  bank  bought,  at  the  sale  for  a 
debt  which  the  bank  was  bound  to  pay  for  the  debtor,  it  was 
held,  that  whether  he  purchased  for  himself,  or  for  the  bank, 
the  sale  could  not  stand.  The  court,  in  disposing  of  the  cpies- 
tion,  say:  "The  general  interests  of  justice"  require  "that 
purchases  made  by  persons  holding  a  fiduciary  situation  in 
relation  to  the  sale,  should  be  set  aside  in  all  cases,  if  apj)lica- 
tion  is  made  in  a  reasonable  time,"  and  that  the  purchaser 
could  not  be  permitted  to  hold  his  purchase. ^  It  were  a  fraud 
upon  the  debtor  for  those  whose  duty  to  him  required  them  to 
pay  the  debt,  to  buy  at  a  sale  caused  by  their  own  default. 

'  2  Johns.  Ch.  252. 

*  Michoud  V.  Girod,  4  How.  503;  Wormslcyt«.  Wormslcj-,  8  Wheat.  241; 
Prcvost  V.  Gnatz,  G  Wheat.  481;  Benedict  v.  Butlcrficld,  11  Foster  (]S".  11.^ 
70 ;  Beeson  v.  Becson,  9  Barr.  297. 

3  Torrcv  v.  The  Bank  of  Orleans,  9  Paige,  049. 


52  JUDICIAL    AND   EXECUTION   SALES. 

IV.     Notice  of  Smju.     Adjoukn^ient. 

§  111.  The  notice  of  sale,  as  to  manner  and  time,  must  be 
such  as  the  order  and  statute  directs,  and  must  correctly  describe 
the  proj^erty.  If  given  difierent  in  manner,  or  for  less  time 
than  required  by  the  law  or  the  decree,  the  sale  will  be  void; 
and  so,  if  there  be  a  substantial  misdescription  of  the  prop- 
erty. ^ 

§  112.  But  if  the  discrepancy  is  not  apparent  in  the  pro- 
ceedings, or  is  not  made  to  appear  by  other  evidence,  the 
]:)resumption  of  law  is,  after  the  sale  is  confirmed,  that  no  such 
discrepancy  existed;  and,  therefore,  this  presumption,  after 
confirmation,  may  not  be  rebutted  in  a  collateral  proceeding. - 

§  113.  Notices  by  posting  up  in  public  places,  are  presumed 
to  perish  as  soon  as  they  have  "  discharged  their  ofiice."  Tliere- 
fore,  secondary  evidence  of  them  and  their  puii-)ort  is  admis- 
sible.-^ 

§  114.  "Where  notice  "was  given  in  the  particular  manner 
required,  and  there  were  no  bidders,  an  adjourned  sale  made 
on  a  slightly  variant  notice,  but  from  fair  motives,  was  held 
valid.  4 

§  115.  I3ut  if  there  is  no  jDarticular  notice  prescribed  by  the 
decree,  then  such  reasonable  notice  should  be  given  as  will  be 
calculated  to  give  publicity  and  secure  fair  competition;  and 
if  the  character  of  the  notice  given  be  of  doubtful  sufiiciency 
the  court  should  refuse  confirmation.-'' 

'  Reynolds  r.  Wilson,  15  111.  C94;  Frazier  v.  Stcenrod,  7  Iowa,  339. 

"  Thompson  «.  Tolmie,  3  Pet.  157;  Parker  «.  Kane,  23  How.  14 ;  Beaure- 
gard «.  New  Orleans,  18  How.  497;  Grignon's  Lessee  v.  Astor,  2  How^  319; 
Morrow  ■».  Weed,  4  Iowa,  77;  Little  t.  Scnuett,  7  Iowa,  334;  Long  ij.  Ben- 
nett, 13  Iowa,  28. 

^  Brown  v.  Redwyuc,  IG  Geo.  G7. 

*  Farmers'  Bank  v.  Clarke,  28  Md.  145. 

5  Sowards  v.  Pritcliett,  37  III.  517,  524;  Trustees  of  Schools  v.  Sncll,  19 
III.  150.  "  It  is  'I  cherished  object  of  courts  to  give  stability  to  judicial 
sales,  and  at  the  same  time,  as  far  as  possible,  protect  and  guard  the  rights 
of  the  owner.  In  all  such  cases  the  chancellor  is  necessarily  vested  with 
a  large  discretion,  and  he  must  so  exercise  it  as  Avill  promote  justice  and 
protect  tlie  rights  of  parties.  And  in  the  exercise  of  that  discretion  this 
court  will  not  interfere  if  it  seems  to  have  been  souudlj^  exercised."  Sow- 
ards V.  Pritchett,  37  111.  524. 


THE   SALE.  5o 

§  IIG.  The  officer  malcing  tlie  sale  inaj  adjourn  it,  in  tlie 
exercise  of  a  reasonable  discretion,  witli  honest  intent  and 
in  good  faith,  and  with  a  view  to  a  faithful  performance  of  liis 
duty  (unless  restricted  by  law).^ 

§  117.  In  the  leading  case  cited,  Blossom  v.  The  R.  B. 
ComjMny,  the  court  say  that  such  is  the  rule  in  execution  sales 
at  law,  "  and  no  reason  is  perceived  why  the  same  rule  may 
not  be  safely  applied  in  judicial  sales  made  under  the  decretal 
order  of  a  court  of  chancery." 2  And  in  Uichards  v.  Holmes^ 
they  hold  that  a  sale,  "  regularly  adjourned,  so  as  to  give  notice 
to  all  persons  present  of  the  time  and  place  to  which  it  is 
adjourned,  is,  when  made,  in  effect  the  sale,  of  which  previous 
public  notice  Avas  given."  ^ 

§  lis.  That  the  person  or  officer  who  is  authorized  to  sell 
at  public  auction,  after  proper  notice  of  the  time  and  j)lace 
of  sale,  may  regularly  and  legally  adjourn  the  sale  to  a  different 
time  and  a  different  j)lace,  when  in  his  fairly  exercised  discre- 
tion it  shall  seem  necessary,  in  order  to  obtain  a  fair  auction 
price  for  the  property,  is  too  well  settled  to  remain  a  matter 
of  doubt,  subject  always,  however,  to  the  scrutiny  and  wise 
discretion  of  the  court  ordering  the  sale,  as  to  the  confirma- 
tion thereof,'* 

§  119.  In  the  language  of  the  United  States  Sujn-eme  Court, 
"  If  he  has  not  this  power,  the  elements,  or  many  unexpected 
occurrences,  may  prevent  an  attendance  of  bidders  and  cause 
an  inevitable  sacrifice  of  the  property.  It  is  a  power  which 
every  prudent  owner  would  exercise  in  his  OAm  bekalf,  under 
the  circumstances  supposed,  and  which  lie  may  well  be  j)re 
sumed  to  intend  to  confer  on  another."  And  in  the  same  case, 
"The  courts  of  the  several  states  have  gone  further  in  this 
direction  than  we  find  it  necessary,  though  we  do  not  intend  to 
intimate  any  doubt  of  the  correctness  of  their  decisions.    They 

'Blossom  v.  R.  R.  Co.  3  Wall.  209;  Collier  ^•.  ^Yliipplc,  13  Wend.  220; 
Brown  «.  Redwync,  16  Geo.  G7. 

■  Blossom  «.  R.  R.  Co.  3  Wall.  209. 

3 18  IIow.  147;  Tinkom  v.  Purdy,  5  Johns.  345;  Russell  v.  Richards,  11 
Maine,  371;  Warren  v.  Leland,  9  j\Iass.  205;  Lautz  v.  Worthiugton,  i 
Barr,  153. 

*  Richards  v.  Holmes,  IS  IIow.  147. 


54  JUDICIAL   AKD   EXECUTION   SALES. 

liave  lield  that  a  public  officer,  upon  wliom  a  power  of  sale  is  con- 
t'eiTcd  by  law,  may  adjourn  an  advertised  public  sale  to  a 
different  time  and  jjlace,  for  tlie  purpose  of  obtaining  a  better 
price  for  the  property.  Thikom  v.  Purely,  5  Johns.  345; 
JRusscllv.  liichards,  11  Maine,  371;  Lautz  v.  Worthington,  4 
Barr,  153;    Warren  v.  Leland,  9  Mass.  265. ^  " 

§  120.  The  case  of  Hicliards  v.  Holmes  arose  on  a  sale  by 
a  trustee,  under  a  deed  of  trust  and  not  on  a  judicial  decree. 
But  the  United  States  Supreme  Court  distinctly  therein  recog- 
nize the  rule  that  otlicers  selling  under  proceedings  in  court 
may  adjourn  the  sale,  and  tlierefore  the  court  assume  that  the 
trustee  selected  by  the  debtor  himself  may,  by  inference,  do 
the  same.  But  we  would  not  be  understood  as  claiming  that 
the  officer  may,  as  a  general  rule,  adjourn  to  a  different  place 
than  the  one  named  in  tlie  decree,  if  a  place  be  named  therein. 
Yet,  even  under  such  circumstances,  sales  have  been  allov.'ed 
and  confirmed  by  the  courts. ^ 

§  121.  The  notice  of  a  judicial  sale,  if  no  time  be  fixed  by 
the  decree,  should  name  the  honr  of  the  day  at  which  the  sale 
is  to  be  made,  or  certain  hours  betwixt  which  it  will  take  place, 
fixing  the  time  in  the  ordinary  business  hours  of  the  day; 
and  the  place  of  sale  should  be  a  convenient  or  public  place, 
accessible  to  bidders, 

"When  sale  has  been  made  under  a  notice  which  did  not 
specify  any  hour  or  certain  time  of  day  for  the  sale,  and  tlie 
property  was  sold  for  a  nominal  sum,  the  sale  was  set  aside.^ 

'  Richards  v.  Holmes,  18  How.  144,  147. 

-  Farmers'  Bank  v.  Clarke,  28  Md.  14o. 

=  Trustees  of  Schools,  etc.,  v.  Sncll,  19  111.  15G.  In  this  case,  Skinnek, 
Justice,  said :  "  This  was  a  motion  to  set  aside  a  sale  of  land  made  on 
foreclosure  of  a  mortgage.  The  Circuit  Court  set  the  sale  aside.  The 
decree  directed  the  master  to  sell  upon  four  weeks'  notice  of  the  time, 
terms,  and  place  of  sale,  published  in  a  newspaper  printed  in  the  city  of 
Pckin.  The  notice,  published  on  the  4th  of  December,  1856,  stated  that 
the  sale  would  be  made  on  '  the  2d  day  of  January  next.'  The  proof 
showed  that  the  property  was  sold  at  an  enormous  sacrifice.  The  notice 
as  to  the  time  of  sale  was  insufficient.  The  2d  day  of  January  included 
the  astronomical  period  of  a  revolution  of  the  earth  upon  its  axis  twenty- 
four  hours.  2  Blackstone's  Com.  141,  and  notes;  1  Cowen's  Treatise,  297. 
The  sale,  therefore,  might,  consistently  with  the  notice,  have  been  maae 


TJIE    SALE.  5.5 

V.       CoNFIItJIATIOX. 

§  122.  Confirmation  is  tlie  judicial  sanction  of  the  court. 
Until  then  ths  bargain  is  incomplete.  When  made  it  relates 
back  to  the  time  of  sale  and  "  sup23lies  all  delects,"  ^  except 
those  founded  in  defect  of  jurisdiction  or  in  fraud. 

§  123.  A  sale  of  lands  under  a  decree  of  a  court  not  having 
jurisdiction  of  the  subject  matter  is  void  and  is  not  the  less 
so  for  being'  confirmed.- 

§  12-1.  Until  confirmed  by  the  court,  the  sale  confers  no 
rights.  Until  then  it  is  a  sale  only  in  a  230j)ular,  and  not  in  a 
judicial  or  legal  sense.  The  chancellor  has  a  broad  discretion 
in  the  approval  or  disapproval  of  such  sales.  "  The  accepted 
bidder,"  (say  the  Supreme  Court  of  Kentucky,)  "acquires  by 
the  mere  acceptance  of  his  bid  no  independent  right,  as  in  the 
case  of  a  purchaser  under  execution,  to  have  his  purchase 
completed;"  but  is  merely  a  j^rcferred  proposer,  until  con- 
firmation of  the  sale  by  the  court,  as  agreed  to  by  its  "  minis- 
terial agent."  In  the  exercise  of  this  discretion  a  proper  regard 
is  had  to  the  interest  of  the  parties  and  the  stability  of  judi- 
cial sales.  2     By  sanctioning  tlie  sale  the  courts  make  it  their 

immediately  before  midnii^'ht  of  that  daj^,  and  if  it  was  so  made,  it  is  void- 
able. The  object  of  a  public  sale  is,  by  fairness  and  competition,  to  evolve 
the  full  value  of  the  property  exposed,  and  produce  that  value  in  the 
form  of  money.  This  can,  as  a  general  rule,  only  be  done  by  making  the 
sale  at  a  convenient  or  public  place,  accessible  to  bidders,  and  during 
the  ordinary  business  hours  of  the  day.  The  notice  shoiild  have  stated 
the  hour  of  sale,  or  that  the  sale  would  be  made  between  certain  named 
hours  of  the  business  portion  of  the  day.    Decree  affirmed." 

1  Branch's  Princt'ina,  28;  Cockcy  v.  Cole,  28  Md.  27G;  Kcelilcr  r.  Ball,  2 
Kan.  160,  172;  Williamson  r.  Berry,  8  How.  540. 

^  Shriver's  Lessee  v.  Lj-nn,  2  How.  43,  59,  69 ;  3  Bouvier,  415 ;  Minnesota 
R.  R.  Co. «.  St.  Paul,  2  Wall.  609. 

^Bussey  v.  Hardin,  2  B.  Mon.  407;  Taj^lor  ».  Gilpin.  3  Met.  (Ky.)  544: 
Southern  Bank  v.  Humphreys,  47  111.  227 :  Williamson  v.  Berrj^  8  How. 
547;  Thorn  v.  Ingram,  25  Ark.  52;  Mason  v.  Osgood,  64  N.  C.  4G7;  Moore 
c.  Shultz,  13  Penn.  St.  102;  Hays'  Appeal,  51  Penn.  St.  58;  So  wards  v. 
Pritchett,  37  111.  517;  Young  v.  Koogh,  11  111.  642;  Ayres  v.  Baumgartner, 
15  111.  444;  Foreman  c.  Hunt,  3  Dana,  622;  Campbell  v.  Johnson,  4  Dana, 
186.  In  Hays'  Appeal,  51  Penn.  St.  61,  the  court  say:  "  Even  the  highest 
bidder,  whose  bid  has  been  returned  to  the  court  as  the  best  oflcrcd,  has 
acquired  no  right  which  debars  the  heirs  or  the  counsel  from  endeavoring 


6G  JUDICIAJ.   AND   EXECUTION   SALES. 

own.  Tlierc  is  a  difference  between  sucli  sales  and  ordinary 
auction  sales  and  sales  by  private  agreement.  In  tbe  latter, 
savs  Daniel  in  bis  Cbancerj  Practice,  "  tlie  contract  is  com- 
plete wlien  tlic  agreement  is  signed;  but  a  different  rule 
prevails  in  sales  before  a  master.  In  sucb  cases  tbe  purcbaser 
is  not  considered  as  entitled  to  tbe  beneiit  of  bis  contract  till 
tbe  master's  report  of  tbe  purcbaser's  bidding  is  absolutely 
confirmed."  Sucb  is  tbe  rule  wbetbcr  tbe  sale  be  by  a  master, 
commissioner,  or  otber  person  or  functionary  autborized  by 
tbe  court  to  conduct  tbe  sale.  Tbe  bargain  is  not  ordinarily 
considered  as  complete  until  tbe  sale  is  confirmed  and  tbe  con- 
veyance is  made.i 

§  125.  Bat,  altbougb  tbere  be  no  confirmation,  if  tbe  deed 
be  made  and  delivered,  accompanied  by  possession  of  tbe 
premises,  time  may,  and  if  sufliciently  long  will  operate  to 
confirm  and  ratify  tbe  sale,  and  will  cure  tbe  title  of  tbe  pur- 
cbaser. ^ 

§  126.  Tlie  court  is  clotbed  witb  an  unlimited  discretion  to 
confirm  a  judicial  sale  or  not,  as  may  seem  wise  and  just. 
Confirmation  is  final  consent;  and  tbe  court  being  tbe  vendor, 

to  have  liis  bid  rejected  and  a  resale  ordered.  It  is  their  right  to  have  as 
much  obtained  for  the  property  as  can  be,  and  until  a  sale  has  been  made 
and  confirmed,  they  may  seek  for  purchasers  who  are  -willing  to  give 
more  than  was  ofl'ered  at  the  public  auction.  They  may  ask  the  court  to 
open  the  biddings,  to  order  a  new  exposure  of  the  property  at  auction. 
His  bid,  though  the  highest,  was  but  an  olTer  to  purchase,  subject  to  the 
approval  or  disapproval  of  the  court,  and  in  approving  sales  made  in  parti- 
tion it  is  the  duty  of  the  court  to  regard  primarily  the  interest  of  the 
heirs." 

'  2  Daniel,  Ch.  1454;  Rawlings  v.  Bailey,  15  111.  178;  Blossom  ».  R.  R 
Co.  3  Wall.  207 ;  Childress  v.  Ilust,  2  Swan  (Tenn.)  487 ;  Williamson  i>.  Berry, 
8  How.  496;  Vallee  vi.  Fleming,  19  Mo.  454;  Webster  v.  Hill,  3  Sneed 
(Tenn.)  333;  Henderson  v.  Ilerrod,  23  Miss.  (1  Cush.)434;  Gowan  ■?'.  Jones, 
10  S.  &  M.  1G4;  Young  v.  Keogh,  11  111.  G43;  Wallace  v.  Hale,  19  Ala.  367; 
Robinson's  Appeal,  02  Penn.  St.  216;  Ilaj's'  Appeal,  51  Penn.  St.  58; 
Koehler  x.  Ball,  2  Kan.  160,  172;  Young  v.  Keogh,  11  111.  642;  Ajvesv. 
Baumgartner,  15  111.444;  Lisehy  v.  Gardner,  3  W.  &  Sergt.  314;  Erb  p. 
Erb.  9  W.  &  Sergt.  147;  Webster  v.  Ilill,  3  Sneed  (Tenn.)  333;  Dickenson  v. 
Talbot,  14  B.  Mou.  60;  Rawlings  v.  Bailey,  15  III.  178;  Ayres  v.  Baumgart- 
ner, 15  111.  444. 

2  Gowan  v.  Jones,  10  S.  &  M.  164.  . 


THE    SALE.  57 

it  may  consent  or  not,  at  its  discretion;^  but  it  cannot  cliangc 
the  terms  of  sale  and  tlien  confirm.  Sucli  act  would  have  no 
validity.  ~ 

§  127.  But  confirmation,  when  made  by  the  court,  tliough 
subsequent  to  tlid  day  of  sale,  relates  back  to  the  date  of  the 
sale,  if  the  date  of  sale  is  apparent  of  record  or  in  the  deed, 
and  carries  title  as  from  that  date.^  Confirmation  cures  all 
mere  irregularities.'^  Such  relation,  however,  as  well  as  the 
validity  of  the  transaction  is  dependant  npon  the  jurisdiction 
of  the  court;  for  if  the  court  has  not  obtained  jurisdiction  so 
as  to  enable  it  to  decree,  or  having  jurisdiction,  and  the  sale 
be  of  lands  not  decreed  to  be  sold  or  described  in  the  decree, 
then,  in  either  event,  confirmation  will  not  give  validity;  the 
sale  will  be  void.^ 

§  128.  The  matter  of  confirmation  rests  so  peculiarly  npon 
the  wise  discretion  of  the  court,  in  view  of  all  the  surround- 
ing facts  and  circumstances,  to  be  exercised  in  the  interest  of 
fairness,  prudence,  and  the  rights  of  all  concerned,  that  it  is 
difiicult  to  come  at  any  absolute  legal  rule  on  the  subject  other 
than  that  of  a  sound  legal  discretion.  *5 

§  129.  Any  mistake  or  misunderstanding  between  the  per- 
sons conducting  the  sale  and  intended  bidders  or  parties  in 
interest,  and  any  accident,  fraud,  or  other  circumstance  by 
which  interests  are  prejudiced  without  the  fault  of  the  injured 
party  or  parties,  or  by  reason  whereof  property  is  sold  at  an 
under  price  considerably  disproportioned  to  its  real  value,  will 
be  deemed  sufiicient  cause  for  refusing  confirmation  and  for 
ordering  a  resale.''     And   so,  generally,  whatever,  and   even 

1  Ohio  L.  and  T.  Co.  «.  Goodin,  10  Ohio  St.  (N.  S.)  557;  Davis  «.  Stewart, 
4  Texas,  223;  Henderson  v.  Herrod,  33  Miss.  (1  Cushm.)  434;  Glenn  v. 
Wotten,  3  Aid.  Ch.  Decis.  514;  Andrews  v.  Scotten,  3  Bland,  G43;  Cunning- 
ham V.  Schley,  G  Gill,  207;  Harrison  v.  Harrison,  1  Md.  Ch.  Decis.  331. 

^  Ohio  L.  and  T.  Co.  v.  Goodin,  10  Ohio  St.  (N.  S.)  557;  Benz  «.  Hines,  3 
Kansas,  390. 

'Evans  v.  Spurgin,  6  Gratt.  107;  Wagner  v.  Cohen,  G,  Gill,  97. 

*  Harrison  v.  Harrison,  1  Md.  Ch.  Decis.  831. 

^  Schriver's  Lessee  v.  Lynn,  3  How.  43 ;    Tov.-nsend  i\  Tallant,  33  Cal.  45. 

« Henderson  v.  Herrod,  23  Miss.  (1  Cushm.)  434;  Sowards  v.  Pritchett,  37 
111.  517. 

'  Cohen  v.  Wagner,  G  Gill,  23G;  Latrobe  v.  Herbert  3  Aid.  Ch.  Decis.  375. 


5S  JUDICIAL  AKD   KXECUTIOy   SALES. 

less,  than  is  snffieieiit  to  set  a  sale  aside  after  its  consummation 
will  of  course,  upon  the  same  principle,  (if  known,)  cause 
confirmation  to  be  denied. 

§  130.  In  California,  where,  it  seems,  that  personal  juris- 
diction of  tliose  in  interest,  is  required  in  procuring  decrees 
in  probate  for  sale  of  a  decedent's  land  by  the  administrator, 
it  is  held  that  without  such  jurisdiction  the  sale  is  void,i  and 
will  be  so  held  in  a  collateral  proceeding.  So  likewise  is  void 
any  order  of  confirmation  of  such  a  sale,  the  order  of  sale 
itself  being  void.^ 

§  131.  In  an  application  of  the  administrator  to  sell  lands 
of  an  estate  wherein  ho  is  also  guardian  of  the  heir,  if  personal 
notice  to  the  heir  is  necessary  by  law,  then  the  relations  of 
administrator  and  guardian  are  antagonistic,  and  he  cannot 
perfect  a  legal  sale  in  acting  for  botli.^ 

§  132.  The  order  of  confirmation  is  in  the  nature  of  a  final 
order,  judgment  or  decree,  and  maybe  appealed  from.^  If 
there  is  jurisdiction,  and  the  law  allows  no  appeal,  then  it  is 
final  to  the  like  extent  as  other  judgments  and  decisions  from 
which  no  appeal  is  allowed,  are  final.  It  cannot  be  assailed  in 
a  collateral  proceeding.  It  is  a  judicial  decision  that  the  sale 
is  properly  made  so  far  as  facts  aj^pear  on  the  ofiicer's  return. 

§  133.  In  some  of  the  States,  as  in  Kansas,  the  legal  and 
tlie  erpiitable  jurisdictions  and  practice  are  so  mingled  into  a 

"  Townsend  v.  Tallant,  33  Cal.  45. 

"■'Townscnd  v.  Tallant,  33  Cal.  45.  By  tlic  court:  "Again,  the  defend- 
ants insist  tliat  the  sale  having  been  conlirmed  by  the  probate  court,  can- 
not be  collaterally  attacked  in  this  action,  but  that  as  against  the  plaintift" 
the  confirmation  is  conclusive  that  the  court  had  jurisdiction  of  both 
subject  matter  and  parties.  But  if  the  order  of  sale  was  coram  nonjudici, 
then  the  '  sale '  was  no  sale,  and  it  could  not  be  made  valid  and  binding 
by  any  number  of  so-called  confirmations.  The  sale  being  void,  there 
was  no  subject  matter  upon  which  the  order  of  confirmation  could  act. 
If  the  court  had  no  jurisdiction  to  order  the  sale  it  had  none  to  confirm  it. 
Where  there  is  no  power  to  render  a  judgment,  or  to  make  an  order,  there 
can  be  none  to  confirm  or  execute  it;  or  none  at  least  without  the  help  of 
legislation." 

3  Townsend  v.  Tallant,  33  Cal.  4o ;  Gregory  v.  Tabor,  19  Cal.  410 ;  Ilaj^ncs 
r.  Meeks,  20  Cal.  317. 

*  Kcchler  v.  I5all,  2  Kansas,  100. 


THE   SALE.  59 

sort  of  livbrid  system  as  to  partake  alike  sometimes  of  each, 
and  seldom  exclusively  of  either.  Thus,  in  that  state,  even  in 
cases  at  law,  instead  of  an  ordinary  writ  of  execution,  an  order 
of  sale  goes  to  the  officer,  partly  under  the  control  of  the  court 
and  j^artly  directed  by  statute,  and  tlie  sale  is  to  be  reported 
for  confirmation  as  well  on  legal  as  on  equitable  findings ;  but 
when  so  reported,  instead  of  being  confirmable  at  the  discre- 
tion of  the  court,  the  court  is  by  statute  required  to  confirm 
them,  "  if  made  in  conformity  to  the  provisions  "  of  the  statute. 
This  renders  the  sale  partly  judicial  and  partly  ministerial,^ 
and  is  a  linding  that  the  statute  is  complied  with. 

YI.     When  the  TriLE  Passes, 

§  13-1.  Tlie  contract  of  sale  is  only  executed  so  as  to  pass 
the  title  by  payment  of  the  money,  and  the  execution  and 
delivery  of  the  deed,  duly  approved  or  confirmed  by  the  court, 
as  the  practice  may  be.^ 

In  the  mean  time,  and  until  then,  the  title  in  administra- 
tion, executors  and  guardian  sales  remains  in  the  ward  or  in 
the  heirs,  as  the  case  may  be,  and  in  other  cases  it  remains 
until  then,  in  the  former  owner.  ^ 

§  135.  But  if  the  deed  be  executed  and  delivered,  and  tlie 
consideration  be  paid,  and  the  proceedings  and  sale  are  correct 
in  all  things  other  than  rej)ort  of  the  selling  and  order  of  con- 
firmation, yet  tlie  title,  by  long  j)ossession  of  the  premises, 
"without  question  of  its  validity,  will  ripen  into  a  valid  one  by 
lapse  of  time,  as  is  herein  before  stated."^ 

YII.     AVhen  kot  Aided  in  Equfit. 

§  13G.     A  purchaser  of  real  estate  at  a  guardian's  sale,  whore 

'Kcchler  r.  Ball,  2  Kansas,  IGO,  172,  171;  Chick  y.  Willetls,  2  Kansas, 
384,  300. 

-Lischey  v.  Gardner,  3  W.  and  Sergt.  314;  Williamson  v.  Berry,  8  IIow. 
547;  Moore  v.  Sliultz,  13  Penn.  St.  102;  Busscy -y.  Hardin  2  B.  Monroe, 
407;  Thorn  v.  Ingram,  25  Ark.  52;  Sowards  v.  Tritchett,  37  111.517;  Camp- 
bell V.  Johnson,  4  Dana,  18G;  Foreman  v.  Hunt,  3  Dana,  G22. 

'  Ibid,  and  Erb  v.  Erb,  9  W.  and  Sergt.  147. 

*  Gowan  v.  Jones,  10  S.  and  M.  104. 


GO  JUDICIAL   AND   EXECUTION   SALES, 

tliG  sale  lias  not  been  reported,  confirmed,  or  approved,  as 
required  by  statute,  will  not  be  aided  in  eqnity  by  injunction 
against  an  action  at  law  for  tlie  premises,  nor  by  a  decree  con- 
firming tbe  sale,  or  quieting  title,  altliougli  sucli  purchaser  has 
paid  the  purchase  money,  i 

§  13  T.  If  an  administration  sale  of  lands  be  void  at  law, 
equity  cannot  ordinarily  interfere  to  set  np  or  maintain  it,^ 

^or  has  the  purchaser  a  lien  on  the  land  on  failure  of  title, 
which  chancery  can  enforce  against  the  heirs  for  the  purchase 
money.-'' 

VIII,       ISTOT   AFFECTED   BY    EeVERSAL   OF   THE    DeCEEE. 

§  138.  The  title  acquired  at  a  decretal  sale  of  lands  made 
by  a  court  in  the  exercise  of  competent  jurisdiction,  is  not 
rendered  invalid  by  the  reversal  of  the  decree  for  mere  irregu- 
larity or  error, -i  This,  too,  although  the  purchaser  was  a  party 
to  the  suit  in  which  the  decree  was  made,^  N^or  if  notice  be 
given  to  the  purchaser  at  the  time  of  the  sale  and  before  he 
purchased  that  an  eftbrt  would  be  made  to  reverse  the  decree. « 

§  139.  In  the  case  above  cited  from  the  first  of  Wallace,  the 
Supreme  Court  of  the  United  States  lay  down  the  rule  to  be, 

^  Young  c.  Dowling,  15  111.481;  Bright  i\  Boyd,  1  Story,  478;  Dickey 
V.  Beaty,  14  Ohio  St.  389.  In  Bright  v.  Boyd,  Story,  Justice,  says :  "  Now 
it  is  a  well  settled  doctrine  that  although  courts  of  equity  may  relieve 
against  the  defective  execution  of  a  power  created  by  a  party,  yet  they 
cannot  relieve  against  the  defective  execution  of  a  power  created  by  law, 
or  dispense  with  any  of  the  formalities  required  thereby  for  its  due  execu- 
tion, for  otherwise  the  whole  policy  of  the  legislative  enactments  might 
be  overturned.  There  may  be  exceptions  to  this  rule,  but  if  there  be  the 
present  case  docs  not  present  any  circumstances  which  ought  to  take  it 
out  of  the  general  rule." 

^  Lieby  i\  Parks,  4  Ohio,  409,  493 ;  Young  v.  Dowling,  15  111.  481 ;  Bright 
V.  Boyd,  1  Story,  478. 

=  Lieby  v.  Parks,  4  Ohio,  409,  493. 

*  Ward  V.  Hollins,  14  Md.  158 ;  Irwin  v.  Jeffers,  3  Ohio,  (N.  S.)  389 ;  Gos- 
som  v.  Donnaldson,  18  B.  Monroe,  230;  Gray  v.  Brignardello,  1  Wall.  627, 
C34;  Clark  v.  Bell,  4  Dana,  20;  Fergus  v.  Woodworth,  44  111.  374;  Goudy 
V.  Hall,  3G  111.  319;  McLagan  ®.  Brown,  11  111.  037;  Ivcrson  v.  Lobcrg,  20 
111.  179. 

'  Gossom  «.  Donaldson,  18  B.  Mon.  230. 

•  Irwin  V.  Jcficrs,  3  Ohio,  (N.  S.)  389. 


THE    SALE.  61 

"that  although  the  judgment  or  decree  may  bo  reversed,  yet 
all  rights  acquired  at  a  judicial  sale  while  the  decree  or  judg- 
ment were  in  full  force,  and  which  they  authorized,  will  he 
protected.  It  is  sufficient  for  the  buyer  to  know  that  the  court 
had  jurisdiction  and  exercised  it,  and  that  the  order  on  the 
faith  of  which  he  purchased  was  made,  and  authorized  the 
sale."  With  the  errors  of  the  court  he  has  no  concern. ^  This 
doctrine  applies  however  to  sales  wdiere  present  power  to  make 
them  is  clearly  given  to  the  person  selling  by  the  decree  or 
order  of  the  court,  and  not  to  sales  made  on  interlocutory 
orders  not  yet  ripened  into  full  authority  to  sell,  and  which 
contemplate  and  require  further  action  of  the  court  in  refer- 
ence thereto  before  the  authority  to  sell  can  be  exercised. 
Sales  under  such  interlocutory  order  before  further  action  by 
the  court  are  invalid  and  will  not  be  protected  from  the  effect 
of  reversal  even  by  a  curative  entry  made  nunc ^ro  tunc." 

§  140.  But  where  one  only  of  several  creditors,  parties  to 
the  proceedings  and  entitled  to  the  proceeds  of  sale,  becomes 
the  purchaser,  applying  only  his  own  portion  of  the  purchase 
money  on  his  purchase,  and  paying  the  residue  into  court, 
and  the  same  is  distributed  among  the  other  claimants  by  a 
decree  of  distribution  and  paid  over  to  them,  some  of  whom 
are  insolvent,  it  is  holden  in  Ohio,  that  such  ^^urcliascr,  on  a 
bill  of  review,  is  entitled  to  the  j^rotection  of  the  statute  of 
that  state  of  1841,  which  provides,  ''  that  if  any  judgment  or 
judgments  in  satisfliction  of  which  any  lands  or  tenements 
belonging  to  the  party  hath  or  shall  be  sold,  shall,  at  any  time 
thereafter  be  reversed,  such  reversal  shall  not  affect  or  defeat 
the  title  of  the  purchaser  or  purchasers;  but  in  such  case 
restitution  shall  be  made  of  the  monies  by  the  judgment 
creditor,  for  which  such  lands  or  tenements  were  sold,  with 
lawful  interest  from  the  day  of  sale."     And  in  the  same  case 

^  Gray  v.  Brisnardello,  1  Y/all.  G3-4 ;  Vorlices  e.  Bank  of  tlic  United  States, 
10  Pet.  449;  Blanc  «.  Carter,  4  Crauch,  338 ;  Taylor  v.  Thompson,  5  Pet. 
370;  Wright  v.  Ilollingsworth,  1  Pet.  1G9;  Elliott  «.  Piersol,  1  Pet.  340. 

"  Gray  -c.  Brignardello,  1  Wall.  C34,  G3G;  Southern  Bk.  t\  Humphreys,  47 
111.  227. 


C3  JCDICIAL,   AND   EXECUTION    SALES. 

an  improper  distribution  of  j^rocceds  was  afterwards  corrected 
on  bill  of  review.  1 

§  141.  In  tlie  case  of  McBride  v.  Longworth^-  the  pre- 
vious case  of  Jlubhell  v.  The  Administrator  of  Broadwell^ 
was  adverted  to  and  approved,  as  not  in  conflict  with  the 
decision  in  McBride  v.  Longworth,  as  in  the  case  from 
yth  Ohio,  the  purchaser  was  the  sole  creditor;  purchased  in 
discharge  of  his  own  mortgage  decree;  received  the  entire 
proceeds,  and  was  still  the  holder  of  the  premises  so  purchased 
by  him,  and  "  no  new  rights  had  intervened."  The  court  there 
held  that  such  sole  purchaser  was  to  be  regarded  as  a  party 
merely  and  not  as  a  iona  fide  j)urchaser;  and  that  on  reversal 
of  the  decree  of  sale  the  mortgagor  had  a  right  to  redeem. 
That  as  "  there  were  no  other  parties  in  interest  but  the  mort- 
irafT-or  and  mortsrao-ee,"  and  that  "between  them  full  justice 
could  be  done  "  after  such  reversal. 

IX.     How  Affected  ey  Statute  of  LiMrrA'noN. 

§  143.  The  special  statute  of  limitations  limiting  the  time 
to  five  years,  or  other  term,  in  which  the  validity  of  sales  in 
probate  made  at  the  instance  of  guardians  and  administrators 
may  be  questioned,  is  not  construed  to  apply  to  such  sales 
made  under  decrees  or  orders  that  are  void  for  tlie  want  of 
jurisdiction  of  the  court;  or  in  cases  where  jurisdiction  had 
not  attached;  nor  to  sales  made  as  if  by  a  guardian,  by  one 
assuming  to  be,  but  in  reality  not  such.  If  the  order  be  void, 
or  if  the  sale  be  made  by  one  having  no  authority  whatever, 
nor  semblance  thereof,  the  statute  will  not  apply.  In  all  such 
cases  tlie  heir  at  law  will  not  be  estopped  by  tlie  limitation 
of  time  named  in  the  statute,  from  asserting  his  title. ^  ISTor 
will  the  statute  apply  to  sales  made  before  its  enactment. ^ 

§  143.     But  the  defendant,  in  an  action  for  real  estate,  who 

'  McBride  v.  Longwortli,  14  Ohio  St.  344,  351,  352. 
'  McBride  v.  Longwortli,  14  Ohio  St.  349,  351,  352. 
» 8  Ohio,  120. 

•»  Purley  v.  Hays,  22  Iowa,  1 ;  Holmes  v.  Bcal,  9  Cush.  223;  Chadbournc 
V.  Ptadcliff,  30  Maine,  354. 
'  Cooper  V.  Sunderland,  8  Clarke,  14. 


TIIK    SALE.  Go 

makes  titlo  under  an  admlnistrator''s  sale  in  probate  and  con- 
veyance, and  having  had  possession  for  more  than  live  years, 
the  time  limited  in  which  to  question  such  sales,  and  who 
pleads  and  relies  on  such  limitation,  will  not  be  required  in 
such  action  to  first  show  a  'prima  facie  valid  sale  before  he 
can  take  the  benefit  of  the  statute.^ 

§  144.  To  require  the  defendant  to  first  establish  a  valid 
sale  before  he  can  liavo  the  benefit  of  the  limitation,  would 
effectually  do  aM^ay  with  the  statute,  for  if  the  sale  be  shown 
to  be  valid,  such  showing  is  a  full  defense  and  the  statute  is 
useless. 

§  145.  But  ordinarily  a  defendant  thus  defending  must 
show  a  sale  in  fact  and  a  deed  thereon,  and  that  the  same  was 
confirmed  by  the  court,  so  as  to  amount  to  color  of  title  under 
which  to  claim  the  protection  of  the  statute  of  limitation. ^ 

X.     How  Affected  by  the  Statute  of  Feaeds. 

§  146.  The  prevailing  rule  is,  that  after  confirmation,  judi- 
cial sales  arc  not  within  the  statute  of  frauds.  Lord  IIabd- 
■\vicee  seems  to  have  first  asserted  this  principle  in  the  case  of 
the  Attorney  General  v.  Bay?  Ilis  Lordship,  in  that  case, 
lays  down  the  rule  that  judicial  sales,  unlike  ministerial  sales 
of  a  sheriff  on  execution,  are  not  within  the  statute  of  frauds, 
and,  therefore,  his  Lordship  declared  that  after  the  master's 
report  and  confirmation,  he  did  not  doubt  the  pr-^priety  of  car- 
rying into  execution  a  purchase  made  by  oral  bid,  although 
the  purchaser  had  subscribed  to  no  agreement.  Judge  Stoky 
assented  to  the  same  j^rinciple  in  Arnold  v.  SmitJi,  but  did  not 
consider  the  sale  involved  in  that  case  a  judicial  sale,  for  the 
reason,  as  he  states,  that  in  PJiode  Island  such  sales  are  not  by 
law  required  to  be  reported  to  the  court  for  confirmation.'^ 

§  147.  In  New  York  it  is  held  that  if  a  judicial  sale  is 
within  the  statute  at  all,  the  report  of  the  master  or  ofticer,  or 

'  Holmes  v.  Bcal,  9  Cusli.  223;  Vanclcave  v.  Millikin,  13  Iiul.  lOo. 
"  lla^lings  V.  Bailey,  15  111.  178;  Vancleavc  v.  Millikin,  13  Ind.  105. 
3  1  Vez.  Scnr.  218;  Brown,  Statute  of  Frauds,  Sees.  G24,  G25;  King  v. 
Gunnison,  4  Barr,  171. 
*  Ainom  V.  Smith,  5  Mason  C.  C.  414,  420,  421. 


G4:  JUDICIAL    AND    EXECUTION    SALES. 

the  memorandum  of  tlie  auctioneer  employed  bv  liim  is  suffi- 
cient to  take  it  out.^  In  Missouri  the  rulinsr  is  substantially 
the  same  as  to  the  effect  of  the  master's  report.-  In  Alabama 
the  sale  is  held  to  be  out  of  the  statute  by  confirmation,  not 
before.^  These  rulings,  though  some  of  them  go  further,  sus- 
tain the  principle  laid  down  by  Lord  IIakdwicke,  which  is  that 
after  coniirmation  the  sale  is  out  of  tlie  statute. 

In  Pennsylvania  and  California,  the  authorities  go  to  a  still 
greater  length,  and  the  rule  is,  that  judicial  sales  are  not  within 
the  statute  of  frauds  at  all."* 

§  14S.  In  Illinois  the  ruling  is,  that  administrator's  sales 
are  within  the  statute,  and  that  even  judicial  sales  by  a  master 
are  not  binding  "until  approved,  by  the  court,"  which,  of 
course,  carries  the  inference  that  after  approval  or  confirmation 
those  made  by  a  master  are  no  longer  within  the  statute. ^ 

XI.     "VViiEN  Valid  ey  Lause  of  Time 

§  149.  There  is  a  defense,  founded  alke  in  benevolence, 
equity,  and  sound  policy.  It  is  lapse  of  time.  Time,  which 
destroys  all  things  else,  serves  but  to  render  one's  landed  pos- 
sessions and  titles  more  sacred  and  more  secure.  Time  or 
accident  destroy  records  and  muniments  of  title,  yet  time 
itself,  when  sufficiently  long,  repairs  the  loss.  Errors,  irregu- 
larities, and  judicial  insufficiencies  may  intervene  after  a  series 
of  years  to  avoid  a  title  and  destroy  a  right;  but  time  supplies 
the  presumption  that  in  the  inception  of  the  j)ossession  tlie 
attributes  of  title  were  all  right,  a  presumption  growing  out 
of  long  possession  and  out  of  the  negligence  of  the  adverse 
claimant  in  prosecuting  his  claim.  Lenevolence  and  good 
conscience  alike  forbid  the  disturbance  of  possessions  and  lire- 

'  Ilageman  v.  Johnson,  35  Barb.  (X.  Y.)  200.  The  case  here  cited  from 
New  York  was  a  case  of  sale  on  mortgage  foreclosure.  National  Fire 
Ins.  Co.  V.  Loomis,  11  Paige,  431. 

2  Stewart  v.  Garvin,  31  Mo.  3G. 

'  Hutton  V.  Williams,  35  Ala.  503. 

*  Fulton  V.  Moore,  25  Pcun.  St.  4G8 ;  Ilalleck  v.  Guy,  9  Cal.  181 ;  King  v. 
Gunnison,  4  Barr,  171. 

5  Bozza  V.  Howe,  30  111.  198. 


THE   SALE.  65 

sides  by  demands,  v/liicli  if  earlier  presented,  ini^ht  possibly 
liave  been  explained  away, 

§  150.  Equity  will  discountenance  tlieni  wlien  time  has 
carried  away  those  who  are  presumed  to  have  had  knowledge 
of  the  transactions  and  rights  thus  sought  to  be  questioned, 
and  will  refuse  such  claimants  equitable  aid.  A  like  refusal 
is  also  based  on  what  is  called  "analogy"  to  limitations  of 
statutes  at  law,  where  a  less  time  has  run  than  is  ordinarily 
deemed  curative  in  itself. ^  So,  that  in  titles  founded  on  judi- 
cial sales,  if  there  be  defects  and  irregularities,  by  lapse  of 
time  the  presumption  arises  that  in  the  inceiDtion  of  the  title 
the  deficiencies  Avere  all  supplied,  and  that  their  evidences  have 
passed  away. 

But  no  length  of  time  will  within  itself  raise  a  jDresump 
tion  in  contradiction  to  an  express  showing  of  the  record 
Thus,  where  the  record  and  proceedings  show  affirmatively 
that  a  guardian  ad  litem  did  not,  as  such,  or  otherwise,  appear 
in  an  action,  and  was  not  in  any  manner  brought  into  couit 
in  the  course  of  the  proceedings,  and  the  proceedings  arc 
fatally  defective  l)y  means  of  sucli  showing,  mere  lapse  of  time 
Avill  not  cure  the  defect,  or  raise  a  presumption  contradictory 
to,  the  record  in  order  to  uphold  a  sale  or  to  supply  the 
deficiency.  3 

§  151.  The  affirmative  showings  of  the  record  are  to  be 
received  as  absolute  verity.  Presumptions  will  su])ply  sucli 
irregularities  only  as  do  not  involve  the  question  of  jurisdic- 
tion, and  whereof  the  record  is  silent. 

'  2  Story,  Eq.  Jiir.  Sees.  1G20, 1G23 ;  Slicer  v.  Bank  of  Pittsburgh,  16  ITot\. 
571;  Beauregard  v.  Kew  Orleans,  18  IIow.  502;  Newson  v.  WcDs,  5 
McLean,  22;  Shafer  «.  Gates,  3  B.  Mon.  457;  Gray*.  Gardner,  8  M^-s. 
v599;  Leverett  «.  Armstong,  15  Mass.  27;  Scott  «.  Freeland,  7  S.  & 
M.  409 ;  Bostwitch  v.  Atkins,  3  Comst.  53 ;  Laugliman  v.  Thompson,  C  S  vfc 
M.  9;  Mooro  u.  Green,  18  IIow.  69;  Watts  «.  Scott,  3  Watts.  79;  Evan?  v. 
Spurgin,  11  Gratt.  615. 

'  Shaefer  v.  Gates,  2  B.  Mon.  457,  458. 

5 


C6  _  JUDICIAL   AND    EXICCUTION    SALKS. 

XII.     IIow  Enforced  against  the  Pekciiaser, 

§  152.  Hy  the  purchase,  the  purchaser  at  a  judicial  sale 
becomes  a  party  to  the  proceedings  in  "whicli  the  sale  is  made.^ 

§  153.  Iso^v,  whoever  makes  liimself  a  party  to  the  pro- 
ceedings of  a  court  of  general  equity  jurisdiction,  and  under- 
takes to  do  a  particular  thing  under  its  decretal  orders,  may  be 
compelled  to  j^erform  what  he  has  undertaken.-  The  proper 
tribunal  to  compel  it  is  the  same  court,  and  by  motion  in  the 
same  cause  in  which  the  undertaking  occurred. ^  This  rule 
applies  to  purchasers  at  judicial  sales  in  courts  of  chancery, 
and  the  proper  method  of  compulsion  is  by  attachment.^ 

§  15-1.  Xor  does  it  matter  that  there  is  a  right,  on  default 
of  payment,  to  re-sell  the  lands  or  bring  suit;  for  the  right  is 
optionary,  not  with  the  purcliaser,  but  with  the  court  or  party 
selling. 5  The  very  j^oint  was  decided  by  Lord  Eldon,  in 
Leaton  v.  Slade,^  in  which  case  the  court  said:  "  If  you  make 
out  that  the  seller  would  have  been  at  liberty  to  re-sell,  that 
does  not  make  out  that  he  lets  the  other  off." 

§  155.  But  such  purchaser  at  a  judicial  sale  may  not  be 
thus  compelled  to  complete  the  sale  if  the  title  be  defective, 
nor  to  2)ay  the  consideration  money  until  the  defect,  if  there 
be  one,  is  obviated;  for  although  the  rule  caveat  emptor  applies 
after  the  sale  is  closed  by  payment  of  the  purchase  money  and 
delivery  of  tlie  deed,  if  there  be  no  fraud,  yet  the  buyer,  if  he 

'  Cazet  D.  Ilubblo,  3G  N.  Y.  T?.  G7T;  Requa  v.  Eea,  2  Paige,  339;  Declrick 
r.  Watkins,  8  Ilunipli.  520. 

-  Wood  V.  Maun,  3  Sumn.  C.  C.  318,  32G ;  Gross  v.  Pearcy,  2  P.  and  II. 
(Va.)  483 ;  Planter's  Bk.  v.  Fowlcs,  4  Sneed,  (Tenn.)  461 ;  Blackmore  v.  Bar- 
ker, 2  Swan,  (Tenn.)  340;  Stimson  «.  Meed,  2  Rhode  Island,  541;  Cazet  v. 
Hubble,  36  N.  Y.  677. 

MVood  T.  Mann.  3  Sumn.  C.  C.  318,  325;  Cazet  v.  Hubble,  36  N.  Y.  677. 

""Wood  V.  Mann,  3  Sumn.  C.  C.  318,  326;  Landsdown  i\  Elderton,  14 
Ves.  512.  In  the  matter  of  Yates,  6  Jones  Eq.  (X.  C.)  212.  Brasher  ^•. 
Cortland,  2  Johns.  Ch.  505. 

^  Wood  V.  ]\Iann,  3  Sumn.  C.  C.  318;  Cazet  v.  Hubble,  36  N.  Y.  677. 

« 7  Yes.  265;  Wood  v.  Mann,  3  Sumn.  C.  C.  331. 


THE  SALE.  G7 

discover  tlio  detect  beforeiiaiid,  will  not  be  compelled  to  com- 
plete tlio  sale.  ^ 

§  15G.  And  tliercfore  if  a  rule  be  made  against  liim  witli  a 
view  to  enforcing  compliance  with  liis  bid,  lie  maj^,  on  appear- 
ance thereto,  have  an  order  of  reference  to  inquire  into  and 
report  the  state  of  the  title  to  the  2)roperty,  and  if  the  title 
prove  to  bo  doubtful  and  incurably  defective,  he  will  not  be 
coerced  into  completion  of  the  purchase.- 

XIII.     How  Carried  into  Effect  ix  favor  of  Purciiash?. 

§  157.  In  judicial  sales,  by  courts  of  ordinary  general 
chancery  jurisdiction,  the  better  course  is  for  the  decree  or 
order  of  sale  to  include  also  an  order  to  put  the  purchaser  into 
])osscssion  to  save  a  resort  to  an  action  at  law  for  that  purpose. 
But  whether  there  be  such  order  inserted  in  the  decree  or  not, 
the  court  has  full  power  to  enforce  its  sale  by  putting  the  pur- 
chaser into  possession  of  the  jDremises  against  the  possession 
of  a  party  to  the  suit,  or  any  one  holding  under  such  party, 
who  came  into  the  possession  during  the  pendency  of  the  suit 
and  refuses  to  render  up  the  premises  to  the  2)nrchascr.2 

§  158.  The  mode  of  proceeding  is,  first  by  a  judicial  order 
to  the  defendant  in  possession  to  deliver  up  the  premises  to 
the  purchaser,  according  to  the  intent  of  the  decree.  Or  when 
the  decree  of  sale  includes  an  order  for  possession,  then  a 
formal  writ  of  possession  or  decretal  order  for  possession  is 
proper.  If  ineficctual,  the  next  step  is  an  injunction,  and  then 
a  writ  of  assistance.^ 

§  159.     Cut  these  summary  methods  of  putting  a  purchaser 

'  Ormsby  v.  Terry,  6  Bush.  (Ky.)  533. 

'  Graham  v.  Bleakie  2  Daly,  (N.  Y.)  55. 

'  Kershaw  ■».  Thompson,  4  Johns.  Ch.GOO;  Gowan  v.  Sumcvalt,  1  Gill  and 
J.  oil;  1  Bland,  3G3;  Frelinghuysen  v.  Golden,  4  Paige,  204;  Van  Hook 
V.  Thrograorton,  8  Paige  33 ;  McGowan  v.  Wilkins,  1  Paige,  121 ;  Creighton 
V.  Paine,  2  Ala.  158 ;  Planter's  Bk.  v.  Fowlkes,  4  Sueed.  (Tenu.)  4G1 ;  Oliver  v. 
Catou,  2  Md.  Cli.  Decis.  297;  Trabuc  v.  Ingles,  G  B.  Mon.  84;  Applegate  t. 
Russell,  25  Md.  317. 

Mvershaw  v.  Thompson,  4  Johns.  Ch.  GOO;  Frelinghuysen  v.  Golden, 
4  Paige  Ch.  204;  Van  Hook  i\  Throgmortou  8  Paige,  33;  McGowan  v. 
Wilkins,  1  Paige,  121 


G8  JUDICIAL    A^TD   EXECUTION    &AIJS. 

at  judicial  sale  into  possession,  or  of  forcing  liim  to  comply 
with  Lis  purchase,  are  not  understood  to  be  within  the  powers 
of  a  mere  probate  court  making  sales  of  a  decedent's  lands 
under  the  statute.  The  purchaser  at  such  sales  will  be  left  to 
his  remedy  at  law  by  action  of  ejectment,  or  whatever  legal 
remedy  by  action  stands  in  lieu  thereof,  in  case,  as  in  some  of 
the  States,  the  action  of  ejectment  be  abolished.  ^ 

§  160.  If,  on  the  other  hand,  the  purchaser  at  a  sale  of 
lands  in  probate,  refuse  to  complete  the  purchase  and  pay  the 
purchase  money,  then,  instead  of  the  coercive  process  which  a 
chancery  court  of  general  jurisdiction  might  resort  to,  and 
which  is  not  among  the  powers  of  the  probate  court,  the 
property  may  be  sold  over  again,  and  if  for  a  less  sum  the 
administrator  may  recover  the  difference  from  such  first  pur- 
chaser, and  if  it  amounts  to  more  than  what  will  pay  the  debts, 
the  residue  is  a  trust  fund  for  the  widow  and  heirs  of  the 
deceased. 3 

XIY.     IvATiFicAnoN  i;y  tue  Party  Affected,  or  by  Lapse  of 

Tevie. 

§  IGl.  Though  a  sale  be  not  legally  binding  in  the  fii'st 
instance,  yet  it  may  become  so  by  ratification,  either  express 
or  implied,  of  the  party  whose  property  is  sold.^ 

§  162.  Thus  a  sale  by  guardian,  of  a  ward's  lands,  is  ratified, 
if  the  ward,  when  of  full  age,  receive  and  accept  the  proceed«t 
of  the  sale  with  knowledge  of  the  circumstances.^ 

And  so  of  an  acceptance  by  the  heirs  at  law  of  their  respectirc 
shares  of  the  purchase  money  of  land  sold  by  the  adminit!- 
trator  of  a  decedent  with  full  knowledge  of  the  condition  of 
things;  they  thereby  ratify  the  sale  and  may  not  thereafter 

'  Butler  V.  Emmet,  8  Paige,  12, 

'  Cobb  V.  Wood,  8  Cush.  228;  Mowry  v.  Adams,  U  Mass.  327. 
•'  Michoud  V.  Girod,  4  How.  503,  561 ;   Scott  v.  Freeland,  7  S.  and  M.  409, 
420 ;  Tooley  v.  Gridley,  3  S.  and  M.  493 ;  Henderson  v.  ncrrod,  3S  Miss.  434. 
*  Scott  V.  Freeland,  7  S.  and  M.  409,  420. 


THE   KALE.  09 

contest  its  validity, ^  Tinless  for  fraud  iinknowu  to  them  wlien 
they  received  the  proceeds.  2 

§  163.  Wliere  the  widow  of  an  intestate  sold  the  equitable 
interest  of  the  deceased,  in  a  parcel  of  land,  without  any 
authority,  it  was  holden  that  the  heirs  at  law,  by  receiving  the 
purchase  money  affirmed  and  ratified  the  sale.^ 

^  Lee  V.  Gardner,  3G  Miss.  521 :  Jennings  v.  Kce,  5  Ind.  257,  259 :   Maple 
V.  Kussart,  53  Penn.  St.  348:  Michoud  v.  Girod,  4  How.  503,  5G1. 
'  Michoud  v.  Girod,  4  How.  503. 
'Jennings  v.  Kee,  5  Ind.  257,  259. 


OnAPTER   Y. 

JUDICIAL  SALES  TO  ENFORCE  LIENS  ON  KEAL  PROrERTT. 
I.    IMuxiCTTAL  Liens  fok  Street  Imphovements. 

II.     MECnANIC'S  LlEXS. 

III.    Mortgage  Liens. 
lY.    Vendor's  Liens. 

I.     Municipal  Liens  for  Stkeet  liirKOVE^iExxs. 

§  IGi.  Sales  in  .eqnitv  for  tlie  enforcement  of  municipal 
liens  on  land,  arising  under  ordinances  or  statutes  for  street 
improvements,  are  regarded  as  judicial  sales. i  If  there  be  no 
special  metliod  provided  for  the  enforcement  of  liens  of  a 
municipal  corporation  for  street  improvements,  or  if  there  be 
a  method  prescribed,  but  not  prescribed  as  exclusive,  then,  in 
either  case,  the  remedy  may  be  sought  and  the  enforcement 
had  by  decree  and  sale,  in  equity,  on  aj)plication  by  bill  or 
2)etition,  npon  the  general  principle  of  equity  jurisdiction  for 
the  enforcement  of  liens. 

§  165.  InMcInerny  v.  Beacl,^  the  Supreme  Court  of  Iowa, 
Dillon,  Justice,  lay  do^\ii  the  rule  in  the  following  language: 
"We  take  a  view  of  the  matter  which  upholds  the  power 
granted  and  makes  it  effective,  but  which  duly  guards  and 
preserves  the  rights  of  the  property  0A\mer.  The  expenditure 
is  declared  to  be  a  lien,  and  liens  may  be  enforced  in  equity, 
and  the  power  '  to  collect '  given  by  the  charter  may  be  exer- 
cised by  commencing  an  action  in  court  to  have  the  lien 
enforced."  And  again,  in  the  same  case,  the  court  say  the 
;ity  or  corporation  may,  "  if  its  right  is  not  barred,  commence 
a  suit  in  equity  to  collect  its  tax  and  enforce  its  lien,  we  have 
no  doubt,  and  it  was  so  expressly  adjudged  in  the  case  of  the 
Mayor,  etc.,  v.  Colgate,  above  cited." 

^  Oliio  Life  Ins.  &  Trust  Co.  v.  Gibbon,  10  Ohio  St.  557;  Hamilton©. 
Dunn,  23  111.  259. 
2  Mclnerny  v.  Road,  23  Iowa,  410;  Mayor  v.  Colgate,  12  N.  Y.  140. 

(70) 


.1I"I)ICIAL    SALKS   TO    ENFOIICE    LIKNS.  71 

§  lOG.  And  \VG  may  not  regard  the  use  of  tlie  word  "  action '' 
in  tliis  opinion  as  applied  in  its  ordinary  and  original  legal  sense, 
and,  therefore,  as  importing  a  proceeding  at  law,  but  rather 
in  the  extended  sense  in  "svhich  the  Itcvision  of  Iowa  has  used 
it,  alike  in  reference  to  both  cfjuitable  and  legal  jn-oceedings. 
This  is  clearly  apparent  by  the  subsequent  reference  to  a 
"suit"  in  "equity"  in  the  opinion  of  the  learned  judge. 

§  107.  Such  liens  and  sales  are  the  creatures  of  the  statute 
— are  regulated  thereby — and  the  power  of  the  court  is  said  to 
be  limited  to  a  confirmation  or  rejection  of  the  sale  when 
made,  whether  the  sale  be  by  virtue  of  a  judgment  at  law  or 
decree  in  chancery.  The  court  cannot  modify,  but  must  con- 
firm or  reject  the  sale. 

The  principle,  in  either  case,  is  the  same.  Tlie  right  and 
lien  are  purely  statutory,  were  unknown  to  the  common  law 
and  ordinary  chancery  jurisdiction.  The  statute  in  the  several 
states  is  the  judicial  guide  as  to  the  extent  and  enforcement 
of  such  liens,  although,  in  the  A'ery  nature  of  the  case,  the 
exercise  of  more  or  less  of  chancery  powers  is  involved 
in  the  proceeding,  as  in  addition  to  the  ordinary  judgment, 
if  the  proceeding  be  at  law,  an  order  or  decree  of  condemna- 
tion and  sale  of  j^i'operty  specified  and  described  therein  is 
necessary. ^ 

§  1G8,  In  Ohio  Life  Ins.  and  Trust  Co.  v.  GihLoii,^  arising 
on  street  imj^rovements,  the  sale  was  made  on  decree  and  under 
the  appraisement  law  of  that  state.  The  ground  and  a  build- 
ing thereon  were  appraised  together  and  sold  as  an  entirety. 
After  confirmation  of  the  sale  and  payment  of  the  purchase 
money,  it  was  discovered  that  there  was  less  ground  by  three 
feet  frontage  than  the  quantity  sold.  It  was  holden  that  a  cor- 
responding deduction  from  the  price  could  not  be  made  by  the 
court.     That  there  was  no  rule  by  which  the  discrepancy  in 

■  Ohio  Life  Ins.  &  Trust  Co.  v.  Gibbon,  10  Ohio  St.  557;  Canal  Co.  v. 
Gordon,  6  Wall.  5G1,  5G8;  Mclnerny  v.  Read,  23  Iowa,  410;  Dillon,  Muni- 
cipal  Corps.  Sec.  6G0.  A  personal  action  will,  in  some  cases,  lie  for  the 
money,  as  for  instance  an  ordinary  action  at  law  where  tlie  party  has 
petitioned  for  or  otherwise  acquiesced  in  the  improvement,  but  this  will 
not  reach  the  lien.    Eschbach  v.  Pitts,  G  Md.  71. 

^  10  Ohio  St.  557. 


72  JUDICIAL   AXD   EXECUTION    SALES. 

value  could  be  arrived  at,  as  tlic  purcliaser  liad  lost  no  part  ol 
the  building,  but  a  part  of  the  ground  only  wliicli  lie  had 
contracted  for,  and  the  whole  had  been  appraised  and  sold 
together.  Moreover,  that  were  it  otherwise,  the  court  could  only 
confirm,  or  vacate,  the  sale  as  it  was  made,  and  could  not  alter 
or  modify  it  in  any  substantial  particular.  It  miglit  correct 
mistakes  in  computation  and  other  errors,  but  not  change  the 
terms  of  the  sale  when  made.  In  this  case,  tlie  court  say: 
"  The  purchaser  gets,  with  his  twenty-seven  feet,  all  the  improve- 
ments which  entered  into  their  estimate  of  the  value  of  tlie 
entire  lot.  How  much  of  this  estimate  was  for  the  'ground' 
and  how  much  for  the  '  improvements '  docs  not  appear,  and 
no  computation  could  have  ascertained  it."  Tlie  court  add, 
that  the  improvements  "  may  have  been  A^ery  valuable;"  that 
there  "  was  no  previous  measurement  to  ascertain  the  frontage 
of  the  lot,  and  no  express  reservation  of  a  right  to  do  so, 
before  or  at  the  time  the  money  was  paid,  which  was  several 
days  prior  to  filing  the  motion  at  special  term,  one  month 
after  the  sale;"  that  "judicial  sales  should  always  be  certain, 
and  not  subject  to  any  future  contingencies,  so  that  all  bidders 
may  have  equal  advantages;"  that  the  power  of  the  court  is 
"  to  confirm  or  set  aside,  but  not  to  modify  the  sale  or  its 
terms;"  that  if  "  the  sale  ought  not  to  be  confirmed  as  it  was 
made,  the  best,  and  only  proper  remedy,  is  a  resale,  with  or 
without  valuation,  as  justice  may  require."^ 

§  1G9.  To  enable  a  municipal  corporation  to  enforce  pay- 
ment of  a  tax  levied  for  street  improvements  by  judicial  2)ro- 
ceedings  against  the  property  or  owner,  the  ordinance  under 
which  the  proceedings  are  had,  must  liave  been  duly  published 
as  required  by  law.  Until  such  publication  no  liability  to  pay 
is  incurred.  In  the  case  of  Duhuque  v.  Wootoji,-  a  suit  in 
chancery,  commenced  by  the  city  of  Dubuque  to  enforce  pay- 
ment for  street  improvements,  the  Supreme  Court  of  Iowa 
held,  that  for  want  of  such  publication,  the  complainant  was 
not  entitled  to  relief.  That  court,  Beck,  Justice,  say:  "The 
publication  required  by  tlie  second  section  of  the  ordinance  is 

'  Oliio  Life  Ins.  &  Trust  Co.  v.  Gibbon,  10  Ohio  St.  5G3,  5GG. 
'  Dubuque  v.  Wooton,  33  Iowa,  571,  574. 


JUDICIAL   SALES   TO   ENFORCE   LIENS.  73 

undonLtedly  necessary  in  order  to  fix  the  liability  of  tlie  tax- 
payer, for,  by  the  terms  of  the  ordinance,  tlie  tax  is  declared 
to  be  due  and  payable  after  the  j^nblication  is  completed.  We 
do  not  think  the  tax  can  become  'due  and  payable'  until  this 
requirement  is  complied  with.  The  city  has  chosen  to  iix  this 
condition  to  its  right  to  enforce  the  tax,  it  must  be  complied 
with." 

II.     MEcnAxic's  LiiizvS. 

§  ITO.  Mechanic's  liens  are  of  modern  date,  and  are  crea- 
tures of  the  statute.!  Though  given  by  law,  the  enforcement 
of  them  usually  involves  the  exercise  of  equitable  powers, 
however  in  form  of  law  merely  such  proceedings  may  be  con- 
ducted. Tlius  the  courts  have  held  that  the  proceeding  itself, 
when  not  otherwise  required  by  the  statute,  should  be  in 
chancery  or  according  to  equity  principles  and  practice." 

§  171.  In  the  case  of  Hamilton  v.  Du?in,  the  Supreme 
Court  of  Illinois,  Beeese,  Justice,  lay  down  the  rule  that '-  suits 
to  enforce  '  such  liens '  although  l)y  statute  placed  on  the 
common  law  docket,  are  yet  preceedings  in  chancery,  and 
governed  by  the  rules  of  that  where  they  apply  and  where  the 
act  giving  the  lien  has  not  prescribed  different  rules."^  They 
are  regarded  in  Connecticut  as  conferring  the  same  rights  as 
a  morto-ao-e.^ 

§  172.  In  the  case  of  Canal  Co.  v.  Gordo7i,^  the  court  say: 
"  They  were  unknown  to  the  common  law  and  equity  juris- 
13rudence  both  of  England  and  of  this  country.  They  were 
clearly  defined  and  regulated  in  the  civil  law.^  "Where  they 
exist  in  this  country  they  are  the  creatures  of  local  legislation 
They  are  governed  in  everything  by  the  statutes  under  which 

'  Canal  Co.  v.  Gordon,  G  Wall.  5G1,  571, 

"  Hamilton  v.  Dunn,  22  111.  259;  Rose  v.  Persse,  20  Conn.  256;  Goodman 
V.  White,  2G  Conn.  317,  319,  329;  Mclnerny  v.  Read,  23  Iowa,  410. 

=  Hamilton  v.  Dunn,  22  111.  259,  2G1;  Clark  v.  Boyle,  51  111.  104;  Marvin 
V.  Taylor,  27  Ind.  73. 

*  Goodman  v.  White,  2G  Conn.  317,  319,  320. 

» 6  Wall.  5G1,  571. 

« Domat,  Sees.  1742,  1744. 


74  JUDICIAL    AXD    EXECUTION    S.VLES, 

tliej  arise."  This  was  a  case  coming  up  on  appeal  in  cliancerv 
from  tlie  decree  of  tlie  circuit  court  of  the  United  States  for 
the  northern  district  of  California.  It  involved  the  question 
as  to  whether  the  mechanic's  or  builder's  lien  for  constructing 
one  section  of  a  canal  flumes  and  acqueducts,  attached  to  the 
whole  canal  or  only  to  the  section  on  which  the  work  was 
bestowed.  The  Supreme  Court  held  that  the  lien  attached 
only  to  the  section  on  which  the  work  was  done.  That  court 
says:  "The  lien  is  given  to  contractors  and  laborers  upon  the 
ditch  or  flume  'which  they  may  have  constructed  or  rejoaired, 
-;v  -A  -;v  -;;-  -;!•  ^q  ^]jq  extent  of  the  labor  done  and  materials 
furnished.'  The  work  of  Gordon  was  all  done  upon  the  upper 
section.  lie  had  nothing  to  do  with  the  lower  section.  So  far 
as  he  was  concerned  and  for  all  the  purposes  of  this  litigation 
they  were  distinct  and  independent  works.  A  different  prin- 
ciple would  j)i'oduce  confusion  and  lead  to  serious  evils."  ^ 

§  173.  By  analogy  to  the  general  doctrine  of  relation,  such 
sales  and  conveyances  made  thereon  bear  relation  to  the  time 
of  the  inception  of  the  lien  if  the  statute  be  conformed  to, 
and  such  date  be  agreed  and  fixed  by  the  order  or  decree  of 
sale  as  against  subsequent  lien-holders  and  purchasers.- 

§  174.  In  Indiana  the  practice  is  to  render  a  judgment  at 
law  for  the  debt  against  the  owner  of  the  property  who  was 
such  at  the  time  of  executing  the  work,  and  also  to  make  a 
decree  in  equity  against  the  property  itself,  condemning  it  to 
be  sold  for  the  amount  found  due  to  the  plaintiff.  Thus  the 
proceeding,  as  is  necessarily  the  case  where  the  proceeding  is 
in  personam  as  well  as  i?i  re?n,  becomes  a  mixed  one  of  law 
and  equity.  3 

§  175.  In  such  cases  it  follows  that  if  the  amount  be  not 
realized  on  the  decree,  a  writ  of  ordinary  execution  can  go 
against  the  proj)erty  generally  of  the  defendant  to  enforce  the 
j^ersonal  judgment  for  the  unsatisfied  residue  of  the  judg- 
ment.    A  sale  on  the  latter  would  be  a  ministerial  one,  whilst 

'  Caual  Company  v.  Gordon,  0  Wall.  572. 

^Jackson  v.  Davenport,  20  Johns.  537;  Jones  v.  Swan,   21  Iowa,  18-1; 
Redfield  i\  Hart,  12  Iowa,  355;  State  v.  Lake,  17  Iowa,  215. 
'Marvin  v.  Taylor,  27  Ind.  73. 


JUDICIAL    SALES   TO    E^TFOECE   LIEXS.  75 

a  sale  on  the  decree  in  equity  would  2:)artake  of  tlic  character 
of  a  judicial  sale. 

§  170.  To  make  a  %'alid  sale  of  lands  under  a  decree  to 
enforce  a  mechanic's  lien,  all  persons  in  interest  in  the  prem- 
ises are  to  be  made  j^arties.  Tlierefore  if  the  debtor  who 
procured  the  work  to  be  done  upon  the  premises  convey  the 
property  to  a  lona  fide  purchaser  after  the  execution  of  the 
work,  and  before  commencement  of  proceedings  to  enforce  the 
lien,  and  the  conveyance  be  recorded,  (or  come  otlierwise  to 
the  knowledge  of  the  creditor,)  the  grantee  must  be  made  a 
party  defendant,  else  he  will  not  bo  affected  in  his  riglits 
under  his  conveyance  by  the  decretal  sale.^ 

§  177.  In  the  leading  case  cited  from  Indiana,  the  decree 
expressly  reserved  the  rights  of  all  j^ersons  not  made  parties 
to  the  suit,  but  such  would  be  the  general  efiect  without  the 
reservation.  A  party  in  interest  (not  buying  lis  ])(^ndcns) 
must  have  his  day  in  court  in  adversary  proceedings. 

§  178.  As  betwixt  a  Y^xor  mortgage  lien  and  a  mechanic's 
lien  on  one  and  tlie  same  property,  the  rule  in  Illinois  is  to 
give  the  mechanic's  lien  its  ]yro  rata  j)roportion  of  tlie 
increased  value  caused  to  tlie  proj)erty  by  the  imj)rovement 
when  the  fund  arising  from  the  sale  is  insufficient  to  satisfy 
both.  ISTot  the  cost  of  the  improvement,  but  such  j^art  of  the 
proceeds  of  the  sale  as  bears  a  just  j)roportion  to  the  increase 
thereof  caused  by  the  betterments  placed  on  the  property  by 
the  mechanic. 2  And  in  the  same  state,  as  betwixt  two  or 
more  mechanic's  liens  against  the  same  property,  and  of  equal 
priority,  the  proceeds  of  sale  are  equally  distributed  among 
them. 3 

§  179.  In  ISTevada  it  is  held  that  a  purchase  and  deed 
under  a  mortgage  foreclosure  and  sale,  made  and  j)erfected 
before  proceedings  were  commenced  for  enforcing  a  mechanic's 
lien  on  the  same  premises,  carries  the  title  as  against  the  pur- 

» Marvin  ■«.  Taylor,  27  Intl.  73;  Brown  «.  Wyncoop,  2Blackf.  230;  IIol- 
land  I'.  Jones,  9  Ind.  495;  Shaw  v.  Iloadlcy,  8  Blackf.  IGo. 

■^  Crosby  v.  N.  W.  Manf.  Co.  48  111.  481 ;  Ilowctt  r.  Selby,  54  III.  151 ; 
Dingledine  -y.  Hersliman,  53  111.  280. 

8  Buchter  «.  Dew,  39  111.  40. 


70  JUDICIAL   AND   EXECUTION   SAI.ES. 

cliascr  Tinder  tlic  mechanic's  lien,  when  in  the  proceedings  to 
enforce  it  the  purchaser  nnder  the  mortgage  decree  was  not 
made  a  defendant,  although  the  mortgage  deed  be  junior  in 
]-)oint  of  date  to  the  inception  of  the  lien  of  the  mechanic. 
For,  by  the  purchase  and  deed  under  the  decree  foreclosing 
the  mortgage,  the  legal  estate  passed  to  the  grantee  in  such 
deed,  and  could  not  be  divested  by  the  sale  under  the  mechanic's 
lien  without  having  made  the  mortgage  purchaser  a  party  so 
as  to  give  him  a  day  in  court,  and  an  opportunity  to  contest 
the  lien  of  the  mechanic.  ^ 

§  180.  Nor  does  it  matter  that  the  deed  under  the  mortgage 
sale  was  made  to  an  assignee  of  the  purchaser.  The  effect  is 
the  same  as  if  made  to  the  purchaser  himself.  "  Tlie  sheriff 
had  a  right,  on  sufficient  evidence  of  the  assignment  of  the 
certificate  of  sale,  to  make  the  deed  "  to  the  assignee. 3 

The  same  principle  as  to  priority  is  asserted  in  Illinois, 
under  the  statute  respecting  mechanic's  liens.  In  Williams 
V.  Chajjman  and  others,^  the  court  say:  "The right  of  those 
not  made  parties  are  not  affected  by  the  decree,  or  any  proceed- 
ing under  it;"  and  hold  that  the  purchaser,  in  that  case, 
under  a  mortgage  foreclosure  not  having  been  made  a  party  to 
the  suit  on  the  mechanic's  lien,  had  the  superior  title  even  if 
the  mechanic's  lien  were  the  oldest,  though  it  was  not. 

§  181.  In  Iowa,  the  lien  of  the  mechanic  attaches  from  the 
commencement  of  the  work.  It  continues  without  any  effort 
to  perpetuate  it  until  ninety  days  after  the  work  is  completed 
and  materials  furnished.  AVithin  the  ninety  days  it  is  the 
duty  of  subsequent  incumbrancers  to  ascertain  if  such  lien 
exists.  In  default  thereof,  the  lien  of  the  mechanic  will  over- 
ride such  incumbrances  originating  within  the  ninety  days. 
"Within  the  ninety  days  the  mechanic  must  file  with  the  clerk 
of  the  court  notice  of  his  lien  and  the  amount  thereof.  After 
that  time,  and  after  such  filing,  such  notice  is  notice  to  sub- 

'  The  Matter  of  Smith,  4  Nevada,  254;  but  see  State  v.  Eads,  15  Iowa, 
114,  where  the  contrary  doctrine  is  substantially  holden. 

2  The  Matter  of  Smith,  4  Nev.  254,  260. 

3  Williams  v.  Chapman,  17  111.  423;  Kimball  v.  Cook,  1  Gilm.  427;  Kelly 
c.  Chapman,  13  111.  534. 


JUDICIAL   SALES   TO   LNI'^ORCE   LIENS.  77 

sequent  ineunibraiiccrs,  and  thej  take  subject  to  tlic  mechanic's 
lien.  Omission  to  iile  the  notice  will  jiostpone  the  mechan- 
ic's lien  in  favor  of  sach  subsequent  incumbrancers  and 
purchasers.!  ITot,  however,  if  they  otherwise  have  notice  of 
the  lien." 

§  182.  In  the  same  state  it  is  held  that  the  erection  of  such 
a  structure  on  land  at  the  request  of  the  purchaser  thereof,  who 
is  in  possession  under  a  contract  of  purchase  wliich  is  yet 
executory,  and  is  never  afterwards  completed  by  payment  of 
the  purchase  money  and  procurement  of  a  conveyance,  entitles 
the  mechanic  to  a  lien  against  the  building  so  erected. ^ 

Such  is  the  ruling  under  the  statute  which  declares  that, 
"  The  lien  for  the  things  aforesaid,  or  work,  shall  attach  to  the 
buildings,  erections,  or  improvements,  for  which  they  were 
furnished  or  the  work  was  done,  in  preference  to  any  lien," 
etc.,  and  that  such  building  may  be  "  sold  under  execution, 
and  the  purchaser  may  remove  the  same." 

§  183.  In  Iowa,  judgments  given  for  mechanic's  liens  arc 
cnforcible  by  special  execution. 

By  statute  such  special  execution  is  to  conform  to  the  judg- 
ment; and  the  sale  shall  be  made  as  on  ordinary  writs  of 
execution.*  The  statute  also  declares  that  the  "  lien  shall  attach 
to  the  building,  erections,  or  improvements,  for  which  they 
were  furnished  or  the  work  was  done,  in  preference  to  any  prior 
lien,  or  incumbrance,  or  mortgage  upon  the  land  upon  wliich 
said  building,  erections,  or  improvements  have  been  erected  or 
put,  and  any  person  enforcing  such  lien  may  have  such  build- 
ing, erections,  or  improvements  sold  under  execution,  and  the 
purchaser  may  remove  the  same  within  a  reasonable  time 
thereafter."  Under  this  statute  it  is  holden  that  a  sale  on 
special  execution  running  against  a  house  and  ground,  issued 
on  a  mechanic's  lien,  judgment  entered  against  the  house  alone 

'  Jones  V.  Swan,  21  Iowa,  ISl. 
^  Noel  V.  Temple,  12  Iowa,  27G,  281. 
3  Stockwell  V.  Carpenter,  27  Iowa,  119. 
*  Revision  of  18G0,  Sec.  18G4. 


78  JUDICI.VL    AKD    EXKCUTIOX    SALES. 

is  voidi  in  a  contest  between  tlic  piircliaser  under  iLe  special 
execution  and  a  prior  mortgagor.  2 

§  184-.  On  a  proceeding  to  enforce  by  foreclosure  sucli  prior 
mortgage,  tlie  court  will  treat  the  execution  sale  as  void,  and 
will  provide  for  discliarge  of  tlie  mechanic's  lien  out  of  the 
proceeds  of  the  mortgage  sale;  and  although  the  priority  of 
the  mechanic's  lien  attaches  only  to  the  house  or  proceeds  of 
sale  tliereof,  yet  if  the  court  award  to  such  lien  a  general 
priority  of  payment  from  the  proceeds  of  both  house  and 
o-round,  it  is  not  a  matter  of  such  error  as  the  holder  of  the 
mechanic's  lien  can  complain  of.  If  tliere  be  error,  the  error 
is  in  his  favor.  ^ 

III.       MOKTGAGE   LffiXS. 

§  185.  Foreclosure  sales  in  equity  of  mortgaged  premises 
are  an  innovation  on  the  original  remedy  of  the  mortgagee. 
lie  had  a  right  at  common  law,  on  breach  of  condition,  to  take 
possession  of  the  property,  and  to  a  prudent  use  of  the  same, 
but  subject  to  an  accounting  for  the  rents  and  profits  thereof. 
He  was  moreover  bound  to  deliver  back  possession  when  out  of 
such  income  the  debt,  interest  and  charges  were  satisfied.  Or, 
as  an  alternative  remedy,  he  might  proceed  by  bill  in  chancery 
and  foreclose  the  debtor's  equity  of  redemption  by  a  decree 
cutting  off  the  right  to  redeem  and  vesting  in  the  mortgagor  the 
entire  property  and  estate. *  This  latter  is  termed  a  strict  fore- 
closure. This  procedure,  however,  was  liable  to  impose  great 
hardship  on  one  or  other  of  the  parties,  as  the  property  might 
be  of  much  less  or  much  greater  value  than  the  amount  of  the 
mortgage  debt.  If  the  former,  tlio  creditor  got  too  little,  and 
if  the  latter,  he  got  too  much  for  his  debt.  The  creditor 
being  now  the  owner  of  the  property  might  sell  the  same.  If 
by  fair  sale,  the  amount  produced  was  less  than  his  debt,  he 
could  then  proceed,  according  to  some  rulings,  on  his  bond,  at 

'  Wilson  V.  Heutcr,  29  Iowa,  17C. 
''  Ibid. 
3  Ibid. 

*4  Kent,  Com.  IGG,  1G7;    Bradley  v.  JX.  R.  Co.  3G  Tcnu.  St.  141,  150, 
151 ;  Kobcrtson  v.  Campbell,  2  Call.  428. 


JUDICIAL   SALKS   TO    KXFOKCli  LIENS.  (9 

law,  a<^aiiist  his  debtor  for  the  residue.  To  obviate  these 
results,  and  assure  a  more  equitable  adjustment  of  the  rights 
of  parties,  the  most  of  the  American  States  adopted  the  system 
of  foreclosure  and  sale  in  chancery  and  causing  the  fund  to  be 
brought  into  court  and  applied  on  the  debt,  interest  and  costs, 
and  the  overplus,  if  any,  to  be  paid  over  to  the  mortgage 
debtor  ;i  but  in  case  of  a  deficiency  in  amount  to  discharge 
the  debt,  interest  and  costs,  the  residue  of  the  debt  remained 
against  the  debtor  for  M'hich  he  was  proceeded  against  at  law 
by  an  action,  judgment,  and  execution  sale  if  other  property 
were  found.  A  still  further  progress  was  then  made  in  many 
of  the  States  to  avoid  the  suit  at  law  by  allowing  a  decree  or 
judgment  in  the  same  proceeding  for  the  remaining  balance 
of  the  debt  and  awarding  execution  thereon,  thus  avoiding 
circuity  of  action.  Sales  in  each  of  these  proceedings  in 
chancery  (but  not  sales  on  the  judgment  and  execution  for  the 
residue,)  are  judicial  sales.  Of  these  only  it  is  our  purpose, 
under  this  head,  briefly  to  treat.  Mortgage  sales,  on  WTit  of 
scire  facias  and  other  proceedings  at  law,  and  in  proceedings 
of  a  mixed  nature,  under  various  statutory  innovations  as 
adopted  in  some  of  the  States,  do  not  properly  come  under  our 
present  title.  They  are  not  purely  judicial  sales.  Some  are 
purely  ministerial,  and  others  again  are  of  so  dubious  a  char- 
acter, though  made  in  obedience  to  judicial  decrees  as  at  most 
to  be  but  quasi  judicial.  As  for  instance,  where  the  enforce- 
ment is  by  sj)ecial  writ  of  execution  issued  to  the  sheriff,  and 
no  report  or  confirmation  of  the  sale  being  by  law  required. 

§  1S6.  In  Pennsylvania  and  some  other  of  the  States,  equi- 
table foreclosure  and  sale  does  not  exist,  unless  a  trust  be  con- 
nected with  the  mortgage  and  be  abused.  2  The  procedure  is 
at  law  by  scire  facias  or  other  legal  process.  ^ 

§  187.  But  the  poAvers  of  courts  of  equity  to  decree  a  fore- 
closure and  sale  of  mortgaged  premises  in  general,  on  a  j^roper 
case  made  by  bill  or  petition,  and  to  enforce  such  decree  by 

'  Story,  Eq.  Jur.  Sec.  103j  ;    Bradley  v.  R.  R.  Co.  3G  Penn  St.  147,  1848. 
"Bradley  v.   R.  R.  Co.   3G  Penn.  "^ St.  141,    148;    Willurd  v.   Norris,  'Z 
Rawle,  56. 
'  Bradley  v.  R.  R.  Co.  3G  Pcnn.  St.  141,  151. 


80  JUDICTAL    AjS'D    EXECUTION'    S.W.KS. 

judicial  snie,  and  distribute  or  order  the  application  of  tlic 
proceeds,  is  now  finally  establislied  in  most  of  tlie  States.  ^ 

§  ISS.  Mortgage  sales  in  equitable  proceedings  are  ordi- 
narily made  for  cash;  but  by  consent  of  parties  the  court  will 
sometimes  order  the  sale  to  be  made  on  a  credit;  and  may,  on 
complainant's  request  alone,  so  direct  as  to  the  amount  of  the 
debt  and  interest  of  the  complainant.  In  the  case  of  Sedgwick 
V.  Fish,  the  court  say,  "  Judicial  sales  are  not,  in  general,  made 
on  credit  without  the  consent  of  the  parties." ^ 

§  189.  The  proper  person  to  make  them,  where  there  is  no 
statutory  regulation  to  the  contrary,  is  a  master  or  commis- 
sioner, appointed  by  the  court  and  designated  in  the  decree.^ 
They  must  be  made  by  him  in  person,  and  not  by  deputy,  but 
lie  may  depute  another  person  to  make  the  same,  if  such 
deputed  person  act  in  his  immediate  presence  and  under  his 
control.'^ 

§  190.  The  purchaser  will  not  bo  forced  to  complete  the 
purchase  when  the  sale  was  not  made  at  his  risk,  and  he  cannot 
be  placed  in  possession  without  resorting  to  an  action  of  eject- 
ment, or  where  he  cannot  have  a  clear  title.  ^ 

§  191.  After  the  sale  the  court,  when  necessary,  will  retain 
control  of  the  case  to  the  perfecting  of  tlie  ends  of  justice, 
and  will  coerce,  by  proper  process,  the  delivery  of  possession 
of  the  premises  to  the  purchaser,  in  case  the  mortgagor  or  any 
person  claiming,  or  coming  in  under  him  subsequently  to  the 
commencement  of  the  suit,  withhold  the  same  from  the  pur- 
chaser. Tlie  court  will  not,  in  such  case,  leave  the  purchaser 
to  his  remedy  at  law.*' 

^  Story,  Eq.  Jur.  Sec.  102j;  Brownson  v.  Kinzic,  1  How.  318;  Lansing  i\ 
Goclet.  9  Cow.  34G ;  4  Kent,  Com.  181 ;  Rogers  v.  Jones,  1  McCord,  Ch.  231 ; 
PanncU  v.  The  Bank,  7  liar,  and  J.  202 ;  Bradley  «.  R.  R.  Co.  36  Penn.  St. 
141,  148. 

» Sedgwick  v.  Fish,  Hopkins,  Ch.  594. 

^  Heyer  v.  Deaves,  2  Johns.  Ch.  154. 

"•  Heyer  v.  Dcavcs,  2  Johns.  Ch.  154. 

*  McGowan  v.  Wilkins,  1  Paige,  120;  Seaman  v.  Hicks,  8  Paige,  655. 

•Suffern  v.  Thompson,  1  Paige,  450;  Williams  v.  Waldo,  3  Scam.  2G4; 
Kershaw  v.  Thompson,  4  Johns.  Ch.  609;  Frelinghuysen  v.  Colden,  4 
Paige,  204;  Van  Hook  v.  Throgmorton,  8  Paige,  33;  Crcighton  v.  Payne,  2 
Ala.  158;  McGowan,  v.  Wilkins,  1  Paige,  131. 


JUDICIAL    SALi:S   TO    ENFORCE   LIENS.  81 

§  192.  TIio  proper  remedy  is  first  an  order,  in  case  of  dis- 
obedience thereof,  then  an  injunction,  and.  if  need  be,  a  writ  of 
assistance.^  Sncli  proceedings,  liowever,  will  not  be  awarded, 
usually,  to  a  purchaser  from  the  purchaser  at  the  judicial  sale, 
nor  as  against  one  entering  though  during  the  pendency  of  the 
suit,  yet  not  entering  under  the  mortgage  debtor,  or  other 
party  defendant  to  the  suit.- 

§  193.  In  case  there  be  a  judgment  or  judgments  against 
the  mortgage  debtor,  prior  in  date  to  the  mortgage,  and  a  lien 
on  the  premises,  then  such  judgments  are  to  be  first  extin- 
guished out  of  the  proceeds  of  the  mortgage  sale.^ 

§  19i.  If  there  be  conflicting  claimants  to  the  proceeds  of 
a  sale,  tlic  court  should  settle  the  priorities  and  rights  of  the 
parties  before  the  sale  is  made,  which  it  will  do,  on  application 
for  that  purpose.  Such  a  course  not  only  enables  the  parties 
and  the  master  or  person  selling  to  act  intelligibly  as  to 
application  of  the  fund,  but  also  enables  the  interested  parties 
to  bid  with  knowledge  of  their  rights  as  to  receij)t  of  the  pro- 
ceeds.-* 

§  195.  In  case  a  part  of  the  mortgaged  lands  be  sold  by 
the  mortgagor  after  date  of  the  mortgage,  then  equity  charges 
the  residue  in  the  hands  of  the  debtor  with  the  whole  debt,  as 
in  favor  of  the  purchaser,  or  purchasers,  and  on  foreclosure 
thereafter  such  residue  is  first  to  be  sold,  under  the  decree, 
before  resorting  to  the  part  conveyed  away  by  the  debtor,  ^  If 
several  portions  be  so  sold  by  the  debtor  after  making  the 
mortgage  then  by  some  of  the  authorities,  the  piece  last  sold 
by  the  mortgagor  is  the  first  to  be  sold  under  the  decree,  and 
so  on  in  succession,  each  piece  successively,  in  the  inverse  order 
of  their  sale  by  the  debtor,  until  the  whole  are  exhausted  or 

'  Kershaw  v.  Thompson,  4  Johns.  Ch.  009;  Frclinrrhuysen  v.  Colden,  4 
Paige,  204 ;  Van  Hook  v.  Throgmorton,  8  Paige,  83 ;  McGowan  v.  Wilkins, 
1  Paige,  Vdl. 

"  Van  Hook  v.  Throgmorton,  8  Paige,  33. 

'  Bell  ».  Brown,  3  Har.  and  J.  484. 

*  Snyder  v.  Staflord,  11  Paige,  71. 

5  Massie  y.  Wilson,  16  Iowa,  390;  McWilliams  v.  Myers,  10  Iowa,  335; 
Clowes  v.  Dickenson,  5  Johns.  Cli.  235;  James  v.  Hubbard,  1  Paige,  22G; 
Gill  V.  Lyons,  1  Johns.  Ch.  447. 
G 


82  JUDiaAI-   AND    EXECUTION   SALES. 

the  decree  and  costs  are  satisiicd.  "With  tliis  exception,  liow- 
ever,  tliat  so  long  as  any  part  still  remains  in  the  debtor,  siicli 
part  so  remaining  unsold  by  him  is  to  be  disposed  of  under  the 
decree  before  either  one  of  the  portions  conveyed  nwaj  by  him 
can  be  sold  under  the  decree.  For  as  long  as  any  part  remains 
the  property  of  the  debtor  equity  charges  it  with  tlie  debt  to 
tlie  exemption  of  the  part  sold,  as  between  the  debtor  and  his 
vendee;  and  the  vendee  of  the  residue  or  of  any  part  thereof 
takes  it  subject  to  such  equity,  and  yet  with  a  like  equity  in 
his  favor  as  between  him  and  his  vendor  to  have  the  residue, 
if  any,  belonging  to  his  vendor  sold  first.  ^ 

§  19G.  In  the  language  of  the  chancellor,  in  Cloioes  v. 
Dlcl'enson,  each  subsequent  purcliaser  in  turn  "sits  in  tlie  seat 
of  his  grantor  and  must  take  tlie  land  with  all  its  equitable 
burdens." 

And  so  likewise  in  regard  to  subsequent  incumbrances  of 
the  mortirao-ed  estate.  The  incumbrances  vestins;  last  will 
first  be  postponed,  and  so  on  in  succession  in  an  order  inverse 
to  their  respective  dates,  in  like  manner  as  above  stated  in 
reference  to  sales  of  the  mortgaged  property  in  parcels." 

§  197.  But  by  other  authorities  the  contrary  is  holclen,  both 
in  reference  to  subsequent  sales  and  subsequent  incumbrances 
of  mortgaged  premises,  and  the  ruling  is  that  although  in  case 
the  mortgage  debtor  only  dispose  of  a  part  of  the  mortgaged 
premises,  the  mortgagor  is  in  equity  to  look  to  the  remainder 
of  the  mortgaged  property  still  held  by  the  debtor  for  satis- 
faction of  his  debt,  as  far  as  it  will  go,  before  following  the 
property  disposed  of;  yet,  in  case  it  be  all  sold  or  incumbered 

Stuydevant «.  Hall,  3  Barb.  Cii.  151;  ]\[arshall  v.  Moore,  3G  111.  321; 
Clowes  V.  Dickenson,  5  Johns.  Ch.  235.  "  That  wlicre  tenants  in  common, 
mortgaged  for  a  joint  debt  due  from  both,  for  the  j^ayment  of  which  debt 
both  -were  ecfually  liable  as  between  themselves,  and  afterwards  made 
partition,  and  aliened  their  several  shares  in  different  parcels,  the  share  of 
the  premises  set  off"  to  each  was  chargeable  primarily  with  one-half  of  the 
debt  and  costs,  and  should  be  sold  to  raise  that  half  in  the  inverse  order 
of  the  alienation  of  the  several  portions  thereof."  Ratliboue  v.  Clark,  0 
Paige,  Ch.  G19. 

""  Stuydevant  v.  Hall,  2  Barb.  Ch.  151 ;  Conrad  v.  Harrison,  3  Leigh,  532; 
Ins.  Co.  V.  Miller,  1  Barb.  Ch.  353. 


JUDICIAL   SAU-:3    TO    JIXFOKCK   LTKXS.  83 

l>j  liiiii  subsequently  to  tlie  mortgage,  tlien  those  taking  under 
lihn,  though  taking  at  different  dates,  hold  their  several  inter- 
ests subject  equally  to  the  mortgage  debt  in  2:)roportion  to  the 
respective  values  of  their  several  interests.  In  other  ^'ords, 
that  they  arc  to  contribute  cqiually  and  not  in  the  inverse 
order  above  referred  to,  and  that  their  several  interests  are 
equally  liable  to  the  extent  of  their  proportionate  values,  or 
in  the  whole,  if  necessary,  for  the  mortgage  dcbt.i  The 
former  ruling  of  liability  in  the  inverse  order  of  dates  of  pur- 
chase or  incumbrance,  seems  to  us  the  more  correct  and 
equitable,  as  not  leaving  the  rights  of  subsequent  purchasei-s 
and  incumbrancers  dependent  on  the  subsequent  conduct  of 
the  mortgage  debtor  as  to  selling  the  mortgaged  estate. 

§  19S.  Every  community  has  power  to  declare  the  legal 
obligation  of  contracts  being  made  within  its  jurisdiction,  and 
may  impose  such  conditions,  restrictions,  and  exemptions, 
v.-Ithin  constitutional  limits,  as  may  be  most  politic,  as  to  all 
contracts  made  in  the  future.  Hence  mortgage  sales  are  to 
conform  to  the  laws  in  force  at  the  date  of  the  contract,  so  far 
as  regards  valuation  and  redemption  laws.- 

§  190.  The  sale  under  a  mortgage  decree  confers  title  only 
as  against  the  j^arties  to  the  suit.  Tlie  proceeding  cannot  be 
enforced  to  cut  oif  subsisting  equities  of  incumbrancers  who 
have  not  had  their  day  in  court  as  parties  to  the  proceedings 
resulting  in  the  sale.^ 

§  200.  In  case  of  a  sale  under  representations  that  the 
property  is  clear  of  incumbrances,  and  it  transpires  that 
incumbrances  actually  exist,  the  i:)roper  course  is  for  the  court 
to  order  the  incumbrances  to  be  removed  by  so  much  of  the 
proceeds  of  the  sale  as  shall  be  necessary  to  eifcct  the  removal 
thereof,  so  as  to  make  good  to  the  purchaser  an  unincumbered 
estate,  according  to  the  terms  of  his  purchase."* 

In  Brolst  v.  llroch,  the  Supreme  Court  of  the  United  States 

Bates  V.  Ruddick,  2  Iowa,  423;  Massic  v.  Wilson,  IG  Iowa,  091;  Barney 
V.  Myers,  28  Iowa,  427. 
2  Bronsoa  v.  Kcnzie,  1  IIow.  311,  321,  319. 
^  Ilaincs  v.  Beach,  3  Jolins.  Cii.  459. 
*  Lawrence  t.  Carnoll,  4  .Johns.  Ch.  512. 


S'l  JUDICIAL   AKD   EXEaiTION   SALES. 

hold  that  an  irregular,  judicial  sale,  that  is  even  void  for  "want 
of  notice  as  to  the  mortgagor,  made  at  the  instance  of  the 
mortgagee,  passes  to  tlie  purchaser  all  tlie  rights  of  the  mort- 
gagee, although  it  may  not  bar  the  mortgagor's  equity  of 
redemption. 

§  201,  Tlie  purchaser  having  paid  the  purcliase  money 
■would  seem  to  he  subrojcated  to  all  tlie  rig-hts  of  the  mort- 
gagee  as  creditor,  leaving  the  right  to  redeem  still  in  the 
mortgagor.!  The  sale  being  made  by  procurement  of  the 
mortgagee  he  is  estopped  to  deny  its  validity. 

§  202.  In  Illinois  the  rule  of  priority  as  betwixt  a  mortgage 
lien  and  lien  of  a  mechanic,  where  the  mortgage  lien  is  the 
senior,  is  to  ascertain  the  value  of  the  premises  at  the  time 
the  mechanic's  lien  accruecl,  and  the  comparative  value  thereof 
as  increased  by  the  betterments  made  by  the  mechanic,  and 
then  in  the  decree  of  sale,  give  priority  to  the  mortgage  as  to 
that  proportion  of  the  fund  arising  from  the  sale,  which 
represents  its  comparative  interest,  and  to  the  mechanic's  lien 
priority  as  to  the  amount  that  represents  the  increased  value 
caused  by  the  improvements  to  the  premises. 

§  203.  The  lien  of  the  mechanic,  so  far  as  its  priority  is 
concerned,  is  commensurate  only  with  the  increased  value  of 
the  property,  and,  in  that  respect,  is  not  to  be  measured  "  by 
the  cost  of  the  material  or  labor  actually  furnished."- 

§  20i.  In  Kansas  an  unrecorded  mortgage,  or  mortgage 
made  and  recorded  for  the  wrong  land  by  mistake,  takes  prior- 
ity over  the  mere  lien  of  a  junior  judgment  on  the  lands  really 
agreed  to  and  intended  to  have  been  subjected  to  the  mortgage. 
Such  mortgage  may  be  reformed  and  the  lien  of  the  judgment 
before  sale  on  such  judgment  will  be  postponed  to  that  of  the 

'  Brobst  V.  Brock,  10  "Wall.  0:34;  Gibert  v.  Coolc}^  Walker,  Cii.  404;  Jack- 
son V.  Bowen,  7  Cow.  13. 

-  Croskey  v.  K  ^V.  M.  Co.  48  111.  481.  Sec  also  Raymond  v.  Ewing,  2G 
111.  343;  Smith  v.  Moore,  2G  III.  390;  Norlli  Pros.  Church  v.  Jcvuc,  33  111. 
219. 


JUDICIAL   S-VLES   TO   PIMFORCE   LIENS.  85 

mortgage.^  And  so  docs  an  unrecorded  mortgage  in  Illinois 
overreach  a  prior  judgment  lien  "witli  notice.^ 

§  205.  Under  tlie  Ohio  Statute  of  1831,  a  recorded  junior 
mortgage  takes  precedence  against  an  unrecorded  senior  mort- 
gage; and  so  does  an  execution  sale,  under  a  judgment  junior 
to  an  unrecorded  mortgage.  A  purchaser  at  such  execution 
sale,  or  at  such  junior  mortgage  sale,  takes  the  superior  title 
over  the  senior  unrecorded  mortgage,  although  the  purchase 
be  made  with  full  knowledge  of  the  existence  of  the  unrecorded 
senior  mortgage.  Such  unrecorded  instrument  in  Ohio,  though 
valid  as  between  the  parties  when  such  validity  does  not  affect 
the  rights  or  interests  of  third  persons,  is,  by  the  statute  of 
Feb.  22,  1831,  void  as  to  third  parties  until  filed  for  record.^ 

§  206.  "Wliere  a  mortgagor  sells  and  conveys  the  mortgage 
premises  with  a  stipulation  in  the  deed  that  the  vendee  shall 
pay  off  the  mortgage  debt  as  a  part  of  the  purchase  money  to 
be  paid  for  the  premises,  it  is  liolden  under  the  statute  of  Mis- 
souri that  the  mortgagee  cannot,  in  a  statutory  foreclosure, 
extend  the  remedy  so  as  to  include  the  rendition  of  a  judg- 
ment against  the  vendee  for  the  amount  so  agreed  by  him  to 
be  paid.  The  Missouri  statute  is  not  comprehensive  enough 
for  such  a  proceeding;  it  provides  for  merely  a  foreclosure  at 
law  against  the  property  and  the  original  mortgage  debtor. 
Any  judgment  rendered  therein  against  the  vendee  personally, 
is  not  only  void,  but  an  execution  sale  and  conveyance  there- 
under are  also  void,  and  may  be  so  treated  in  a  collateral  pro- 

'  Swarts  V.  Steerc,  2  Kansas,  23G;  Gouverneur  v.  Titus,  6  Paige,  Cli.  347. 

^  Williams  v.  Tatnal,  29  111.  553.  But  in  Ohio  the  reverse  is  the  rule, 
under  the  statute  of  1831;  see,  Pt.  2  Chap.vii.  title  Priority;  and  Fordick 
V.  Barr,  3  Ohio  St.  471 ;  and  Brown  v.  Kirkman,  1  Ohio  St.  IIG;  White  v. 
Denman.  1  Ohio,  110 

'Stansel  e.  Roberts,  13  Ohio,  148,  156;  Fosdick  v.  Barr,  3  Ohio  St.  471; 
Holiday  v.  Franklin  Bank,  IG  Ohio,  533;  White  v.  Denman,  IG  Ohio,  59; 
Jackson  v.  Luce,  14  Ohio,  514;  Mayham  v.  Combs,  14  Ohio,  428;  Stansel  v. 
Pioberts,  13  Ohio,  148.  Before  the  recording  act  of  1831,  the  recording  of 
mortgages  was  placed  on  the  same  footing  as  absolute  deeds ;  and  notice 
of  a  mortgage,  though  unrecorded,  operated  to  prevent  priority  of  the 
subsequent  judgment  lieu  or  junior  mortgage.  The  ruling  then  was 
different.    Fosdick  v.  Barr   above  cited. 


SG  JUDICIAL   AND   EXECUTION   SALES. 

ceeding.i  If  tlio  mortgagee  would,  in  one  and  the  same  suit, 
seek  a  remedy  by  foreclosure  against  tlie  mortgagor,  the 
property,  and  against  the  vendee  as  on  his  agreement  to  pay 
the  purchase  money,  or  part  thereof,  as  the  case  may  be,  he 
must  resort  to  the  concurrent  remedy  of  a  foreclosure  in 
chancery,  making  the  vendee  a  party  and  seeking  his  remedy 
against  both  the  land,  the  mortgagor,  and  his  vendee.^ 

§  207.  The  equitable  powers  of  a  chancery  court,  when  once 
in  possession  of  the  case,  and  jurisdiction  has  attached  by 
])roper  service,  are  sufficiently  broad  and  searching  to  reach  all 
the  equities  and  all  the  rights  and  liabilities  of  all  the  parties, 
and  will  settle,  dispose  of,  and  enforce  the  whole  in  one  suit.^ 

§  208.  In  JS^ew  York  the  j^ractice  is,  on  a  bill  in  chancery, 
filed  to  obtain  satisfaction  of  a  mortgage,  to  decree  not  only  as 
against  the  mortgagor  for  papnent  of  the  mortgage  debt  and 
sale  of  the  land,  but  also  for  payment  as  against  any  other 
person  who  may  have  become  surety  for,  or  have  assumed  to 
pay  the  debt.  This  is  done  under  the  provisions  of  the  jSTew 
York  statutes.  This  statutory  foreclosure  in  Kew  York  is  a 
proceeding  in  chancery,  and  in  addition  to  the  ordinary  decree 
of  foreclosure  tlie  court  renders  a  personal  judgment  against 
the  vendee  of  a  mortgagor,  upon  the  equitable  undertaking 
that  by  virtue  of  his  contract  with  the  mortgagor,  rests  upon 
him  to  pay  the  amount,  and  which  inures  to  the  benefit  of 
the  mortgagee  by  subrogation,  and  which  will  thus  be  enforced 
to  avoid  circuity  of  action  should  tlie  land  not  sell  for  the 
amount  of  the  mortgage  debt.'^ 

§  209.  AVlien  the  foreclosure  is  for  interest  only,  or  for  one 
or  more  over-due  installments  of  principal  payable  in  install- 
ments, whilst  others  yet  remain  unmatured,  the  court  will 

'  Fitliian  v.  Monks,  43  ^Mo.  502;  Jjuiney  v.  Spcddcn,  SS  Mo.  D9o;  Shaw  '<?. 
Gregoire,  41  Mo.  407. 

'  Fithiau  v.  Mouks,  43  Mo.  502. 

sFithian  v.  Monks,  43  Mo.  502,  519,  520;  Clapwortb  v.  Dressier,  2  Bcss- 
Icy,  Ch.  (N.J.)  G2. 

^Fithian  v.  Monks,  43  Mo.  502;  Blycr -y.  Mulkolland,  2  Sandf.  Cli.47S; 
King  V.  Whitcly,  10  Paige,  405 ;  Belmont  v.  Cowan,  22  N.  Y.  438 ;  Burr  v. 
Beers,  24  N.  Y.  178;  Curtis  v.  Tyler,  9  Paige,  432;  Tail  v.  Foster,  4 
Comst.  312. 


JUDICIAL  salf:s  to  enforce  liens.  87 

decree  a  sale  of  part,  or  of  the  of  whole  the  mortgaged 
premises,  at  its  discretion,  as  may  seem  most  conducive  to 
equity  and  the  rights  and  interests  of  the  parties,  especially  if 
the  property  cannot  be  advantageously  di-s-ided.^  Or  it  may 
make  a  decree  as  for  the  whole  debt,  with  an  order  to  sell  for 
the  amount  then  due  and  retain  the  cause  upon  the  docket 
with  leave  to  take  additional  orders  of  sale  of  a  part  of  the 
premises,  from  time  to  time,  to  satisfy  other  installments  or 
interest,  as  the  same  becomes  due.^  If  sale  be  made  of  the 
whole  of  the  property,  the  court  will  see  that  the  proceeds  of 
the  sale  are  so  aj)plied  upon  the  several  liabilities  as  will  j)ro- 
tect  the  rights  and  equities  of  the  parties  in  interest.^ 

§  210.  In  case  of  conflicting  claimants  to  the  surplus  pro- 
ceeds, or  to  any  part  thereof,  the  court  will  settle  the  rights  of 
all  such  claimants  after  the  surplus  fund  is  brought  into  court, 
so  as  to  protect  the  rights  of  all;  and  if  not  known  to  the 
court,  then  they  should  make  known  their  rights  before  dis- 
posal of  the  proceeds  and  apply  to  have  them  settled  and 
respecte 

IV.     Yexdok's  Lien. 

§  211.  The  vendor's  lien  arises  by  implication  of  law.  It 
attaches  to  the  land  sold  for  the  unpaid  purchase  money,  as 
against  the  vendee  and  all  persons  holding  under  him,  with 
notice  that  purchase  money  remains  unpaid.  It  is  good  as 
ajxainst  the  heirs  or  devisees  of  the  vendee,  or  others,  holding- 
by  voluntary  conveyance,  whether  they  have  notice  or  not;  for 
having  paid  no  consideration,  their  equity  is  inferior  to  that 
of  the  original  vendor.  In  fact,  as  against  liim,  thcT  have  no 
equity  at  all.^ 

'  Brinkerlioff  c.  Thalhimcr,  2  Johns.  Cli.  4SG ;  Ellis  v.  Crai;?,  7  Johns.  Ch.  7. 

'Ellis  V.  Craig,  7  Johns.  Ch.  7,  14;  Briukcrhofl.'  v.  Thalhimcr,  2  Johns. 
Ch,  489. 

=  Brown  v.  Stewart,  1  Md.  Ch.  87;  Astor  v.  Miller,  2  Paige,  68. 

"  Snyder  v.  Stafford,  11  Paige,  71. 

*  2  Story,  Eq.  Jur.  Sec.  1217;  4  Kent,  Com.  Sec.  51;  Garson  v.  Green,  1 
Johns.  Ch.  :J08;  Bailey  ^>.  Greenleaf,  7  Wheat.  46,  50;  "VVatson  v.  Wells,  5 
C(Min.  408;  Greenup  v.  Strong,  1  Bibb,  590;  Hundley  e.  Lyons,  5  JIumf. 
842;  Pierce  v.  Gates,  7  Blackf.  1G2. 


SS  JUDICIAL   AKD    EXECUTIO:^-    SALES. 

§  212.  This  lien  can  only  be  enforced  in  equity;^  and  a  sale 
in  cliancery  to  enforce  a  vendor's  lien  is  a  judicial  sale. 

§  213.  Sucli  lien  overrides  a  meclianic's  lien  where  the 
debtor  has  only  an  executory  contract  of  purchase.  And  so  it 
will  if  the  purchase  is  executed,  provided  the  mechanic  works 
with  notice  that  the  purchase  money  is  unpaid. 2 

§  214.  The  court  assert  the  preference  of  the  vendor's  lien 
in  Stoner  v.  J^ef,^  after  reviewing  former  cases,  in  the  fol- 
lowing language: 

"  Now,  although  as  decided  in  Zt/o/i  v.  IfcGtiffeij,  4  Barr, 
126,  a  mechanic's  lien  upon  an  equitable  estate  attaches  to  the 
subsequently  acquired  legal  estate,  which  takes  place  by  opera- 
tion of  law,  yet  it  does  not  thereby  take  precedence  of  the 
vendor's  claim."  The  court  say:  "  The  latter  had  an  estate 
upon  whicli  the  former  had  no  lien,  and  when  lie  transmitted 
it  to  his  vendee  lie  never  let  go  his  grasp  upon  his  purcliase 
money." 

§  215.  If  a  vendor  sell  land  by  a  contract  merely  executory 
and  on  a  credit,  retaining  the  legal  title  as  security  for  the 
purchase  money,  and  then  takes  judgment  at  law  for  the  pur- 
chase money,  and  executes  and  sells  the  land  generally  to  satisfy 
the  judgment,  the  purchaser,  under  the  execution,  takes  the 
whole  title,  legal  and  equitable,  to  the  land,  leaving  no  interest 
tlierein  whatever  in  either  vendor  or  vendee,  unless  there  be 
riglit  of  redemption  in  the  judgment  debtor.-* 

§  21G.     And  if  on  such  judgment  the  vendor  cause  to  be 

*  2  Story  Eq.  Jur.  Sec.  1217 ;  Pierce  v.  Gates,  7  Blackf.  1G2. 
»  Stoner  v.  Neff,  50  Peun.  St.  258. 

*  50  Penn.  St.  261.  Wc  are  aware  that  in  Lyon  «.  McGuffey,  4  Barr,  120, 
it  is  liolden  that  the  mechanic's  lien  has  preference  of  the  vendor's  judg- 
meut  for  the  purchase  money ;  but  the  decision  in  that  case  is  put  upon 
the  omission  of  the  vendor  to  file  his  judgment  as  by  law  required  within 
ten  days  after  parting  with  his  title,  by  which  omission  the  vendor  lost 
his  priority.  Lyon  v.  McGuftey,  6  Barr,  126,  and  Stoner  v.  Neff,  50  Penn. 
St.  258,  261.  In  Illinois,  as  we  have  seen,  the  court  apportions  the  pro- 
ceeds of  sale,  where  the  mortgage  lien  is  the  oldest,  betwixt  the  two, 
according  to  their  respective  equity,  taking  into  consideration  the 
increased  value  of  the  property  occasioned  by  the  betterments  added 
thereto  by  the  mechanic.    Ante,  and  Crosky  v.  N.  "W.  M.  Co.  48  111.  481. 

*  Pittsburgh  &  Steubenvillc  R.  R.  Co.  v.  Jones,  59  Penn.  St.  433,  436,  437. 


JCDiaAL   SALliS    TO   ENFOIICE   LIENS.  SO 

executed  and  sold  the  equitable  right  only  of  the  vendee  or 
judgment  debtor,  then  the  sale  will  be  valid  to  extinguish  or 
transfer  such  right,  and  the  purchaser  will  stand  in  the  place 
of  the  vendee,  if  a  third  person,  although  there  be  no  statute 
authorizing  such  proceedings.  ^ 

§  217.  Bj  statute  in  Iowa,  it  is  j^rovided  that  "  when  part . 
or  all  of  the  purchase  money  remains  unpaid  after  the  day 
fixed  for  payment,  whether  time  is  or  is  not  of  the  essence  of 
the  contract,  the  vendor  may  file  his  petition  asking  the  court 
to  require  the  purchaser  to  ])erform  his  contract,  or  to  foreclose 
and  sell  his  interest  in  the  property."^  And  so  may  his 
assignee  if  he  assign  the  note  given  for  the  purchase  money. 

Thereupon  the  court  may  decree  a  rescission  of  the  contract, 
or  may  by  decree  of  foreclosure,  as  in  case  of  a  mortgage, 
cause  the  premises  to  be  sold  for  pa^nnent  of  the  unpaid  pur- 
chase money. 

§  218.  In  case  a  note,  or  other  security,  is  taken  for  such 
purchase  money,  the  right  to  thus  foreclose  will  follow  the 
note  into  the  hands  of  an  assignee  or  indorser  thereof,  if  so 
agreed  by  the  vendor,  or,  without  such  agreement,  by  analogy 
to  the  equitable  principle  by  which  security  for  the  payment 
of  a  debt  passes  with  the  debt  to  the  assignee  thereof.^ 

§  210.  Under  the  provision  of  the  Iowa  statute  the  vendor, 
where  he  retains  title  to  the  property  sold,  may  file  his  ]ietition 
on  default  of  payment,  tender  a  deed,  and  proceed  for  the  two- 
fold purpose  of  a  judgment  i?i  personam  on  the  note  or  debt 
for  the  purchase  money,  and  a  decree  of  foreclosure  declaring 

'  GastoQ  ».  TVhite,  4G  Mo.  486. 

2  Revision  of  18G0,  Sees.  8G71,  3G72;  Blair  v.  Marsh,  8  Iowa,  144;  Pierson 
e.  David,  1  Iowa,  34;  Page  «.  Cole,  G  Iowa,  154;  Ilartman  ?;.  Clarke,  11 
Iowa,  510. 

'  Blair  &  v.  IMarsli,  8  Iowa,  144,  147.  In  Adams  v.  Cowherd,  the 
Supreme  Court  of  Missouri  assert  the  rule  as  follows:  "The  doctrine  in 
those  states,  in  which  it  is  admitted  to  be  law,  that  the  assignee  of  a  note 
given  for  the  purchase  money  does  not  acquire  l)y  such  assignment  the 
lien  which  the  vendor  himself  had,  has  no  application  in  cases  where  the 
vendor  retains  the  legal  title.  It  is  only  applicable  where  the  vendor 
makes  a  full  conveyance  which  passes  away  absolutely  his  legal  title. 
This  seems  to  be  well  settled  law.  1  Lead  Cas.  Eq.  274,  275."  Adams  v. 
Cowherd,  30  Mo.  458. 


00  JUDICLU.    AND    EXECUTION    SALES. 

such  judgment  a  lien  on  tlie  land,  and  ordering  it  to  be  sold 
to  satisfy  the  judgment  and  costs;  and  there  will  be  no 
missjoinder  of  causes  of  action  or  remedies.^ 

§  220.  Such  foreclosure  as  of  a  mortgage  being  provided 
for  bj  statute,  is  of  a  mixed  nature  of  law  and  equity;  is  not 
purely  either  a  legal  or  a  chancery  remedy  or  procedure;  but 
partakes  of  the  nature  of  each.  It  is  a  union  of  the  powers 
of  both  law  and  equity  jurisdictions. ^ 

§  221.  But  the  remedy  of  the  vendor  is  not  confined  to  the 
proceeding  provided  by  tlie  Iowa  statute.  lie  may  proceed 
at  law  exclusively,  taking  a  judgment  in  jpersonavi  for  the 
debt;^  or  he  may  jiroceed  by  the  mixed  procedure  and  juris- 
diction for  a  judgment  in  ])er8onain  at  law,  and  a  decree  of 
foreclosure  in  rem  against  the  land,  with  an  order  of  sale  of 
the  same  to  pay  the  judgment;'*  or  he  may,  at  his  election, 
proceed  purely  under  the  statute  for  a  foreclosure  and  sale  of 
the  land  by  a  proceeding  in  rem,  partaking  partly  of  law  and 
partly  of  chancery  jurisdiction  in  its  nature  ;S  or  he  may  pro- 
ceed by  original  bill  in  equity  for  a  specific  ^performance  of  the 
contract  just  as  if  no  statutory  provisions  were  ever  enacted 
on  the  subject.  These  several  remedies  are  concurrent  and 
neither  of  them  is  exclusive.  The  statutory  remedy  being 
merely  cumulative,  docs  not  extinguish  the  others. 

■  Ilartman  v.  Clarke,  U  Iowa,  510. 

^  Cramer  v.  Redman,  9  Iowa,  114;  Ilartman  v.  Clarke,  11  Iowa,  510. 

'  Hershey  v.  Hersliey,  18  Iowa,  24. 

■•  Ilartman  v.  Clarke,  11  Iowa,  510. 

*  IIersb?y  r,.  Ilerslicy,  18  Iowa  24;  Cramer  v.  Uedman,  9  Iowa,  114. 


CnAPTER    VI 

SALES  OF  LANDS  IN  ITtOBATE  FOR  PAY]',IENT  OF  DEBTS. 

I.  Yv'uAT  Lands  jiay  be  Sold. 

II.  What  Debts  Lands  mat  be  Sold  to  Pay. 

III.  Wire  MAY  Conduct  the  Sale. 

IV.  ArPLTCATiOK  to  Sell — How  and  "VViiex  to  be  Made. 

V.    WiTiiLN  What  Time  Sale  to  be  Made,  and  Perfected. 
VI.    Not  After  Repeal  of  the  Law,  or  Abolition  of  the  Court 
Allowing  the  Order. 
VII.    Of  the  Oath  op  the  Person  Selling. 

VIII.    Sales  Merely  Irregular,  or  in  Irregular  Proceeding,  not 
Void. 
IX.    Confirmation  —  The  Deed  —  Its  ^Vitroval. 

I.     "What  Lands  may  be  Sold, 

§  222.  Sales  in  probate  for  payment  of  a  decedent's  debts 
can,  as  a  general  rule,  only  be  made  of  those  lands,  or  interests 
therein,  whereof  the  debtor  dies  seized. ^ 

The  law  fixes  the  statns  of  property  and  renders  it  liable  to 
sale  or  not,  as  may  be  enacted,  for  the  payment  of  the  owner's 
debts,  whether  such  owner  be  living  or  dead,  and  if  made 
liable,  also  regulates  the  method  of  subjecting  it  to  sale.  It 
follows,  therefore,  that  in  the  absence  of  statute  law  renderin'-'- 
lands  liable  to  sale  in  probate  for  the  payment  of  debts,  no 
such  sales  can  be  made.^ 

§  223.  In  Texas,  it  has  been  held  that  head  right  certificates 
for  land  are  such  an  interest  in  real  estate  as  may  be  sold  by 

^  Torrcuce  v.  Torrence,  53  Perm.  St.  505,  511,  512;  Williard  v.  Nasou,  5 
Mass.  240,  244;  Johnson  i;.  Collins,  12  Ala.  022;  George  tJ.  Williams,  26 
Mo.  190;  McCandish  v.  Keene,  13  Gratt.  G15. 

^  Ticknor  t).  Harris,  14  N.  H.  272;  Drinkwatcr  v.  Driulcwater,  4  Mass. 
358;  Bcrp:in  «.  McFarland,  6  Foster  (N.  H.)  53G;  Moore  «.  The  Widow,  11 
Humpli.  512 ;  Pelletreau  ti.  Smith,  30  Barb. 494 ;  Washington  c.  McCaughan, 
34  iSIiss.  304;  llayncs  «.  Mceks,  20  Cal.  228;  Petit  r.^Pclit,  32  Ala.  283; 
Ikelheimcr  «.  Chapman,  32  Ala.  GTO. 


02  JUDICIAL   AIST>   KXECUnOX   SALES. 

the  administrator  under  an  order  in  probate  for  payment  of  a 
decedent's  debts.  ^ 

§  224.  In  Alabama,  it  is  held  tliat  lands  purcbased  from 
tlie  United  States  in  the  name  of  the  widow  and  heirs  of  a 
decedent,  and  with  the  monies  of  the  estate,  under  a  pre-emp- 
tion right  which  had  enured  to  the  decedent  in  his  life  time 
as  a  settler  on  the  public  lands,  are  not  liable  to  sale  in  probate 
for  payment  of  the  decedent's  debts.  Nor  can  the  investment 
be  treated  in  a  court  of  equity  as  a  trust  so  as  to  enable  the 
creditors  to  follow  the  fund  and  subject  the  lands  in  a  court  of 
equity.  The  pre-emption  right  descends,  under  the  act  of 
Cono-ress,  to  the  widow  and  heirs  and  not  to  the  creditors  or  to 
the  administrator.  The  court,  Goldthwaite,  Justice,  say,  that 
"  such  a  trust  would  be  directly  against  the  policy  of  the  pre- 
emption acts,  as  the  bounty  of  the  government  was  obviovsly 
intended  for  the  settler  and  his  heirs.  A  construction,  there- 
fore, which  would  make  him  or  them  trustees  for  the  person 
advancing  the  purchase  money,  is  not  to  be  tolerated,  as  it 
would,  in  effect,  transfer  the  bounty  of  the  government  from 
the  settler  to  the  lender  of  the  money." 

§  225.  In  the  case  above  referred  to  from  Alabama,  the 
court  were  disposed  to  regard  the  investment  of  the  monies  of 
the  estate  as  a  payment  to  the  w^idow  and  heirs,  and,  therefore, 
as  not  calculated  to  create  a  trust  w^rc  the  question  ruled 
under  the  pre-emption  laws  out  of  the  way.  If  regarded  as  a 
payment,  then,  however  liable  to  refund  for  pajmieut  of  debts, 
such  pa^mient  would  not  create  a  lien  on  the  lands  in  which 
the  monies  were  invested,  but  would  create  only  a  personal 
liability  for  the  amount.  If,  however,  the  monies  of  the  estate 
be  diverted  from  their  ordinary  course  by  the  administrator 
and  be  vested  in  realty  by  him,  it  seems  that  in  whosesoever 
name  it  may  be,  that  creditors  and  heirs  would  alike  be  able, 
on  ordinary  principles  of  equity,  to  treat  the  investment  as  a 
trust  for  their  benefit  or  for  either,  as  the  necessities  of  the 
ease  should  require.  And  such  seems  to  be  the  doctrine  in 
Tennessee,  where  the  ruling  is  contrary,  to  some  extent,  to 

'  Soyc  V.  Maverick,  18  Texas,  100. 

2  Jolinson  V.  Collins,  13  Ala.  322,  337;  Cotlirau  v.  McCoy,  33  Ala.  G5. 


SALES   OF   I,iVKDS    IN    TKOBATE.  93 

that  in  Alabama.  The  heirs  in  Tennessee  are  regarded  as  lidd- 
ing lands  in  trust  for  the  j)ajment  of  debts  of  a  decedent, 
where  monies  of  the  estate  are  invested  in  lands  in  their  name 
and  will  be  so  considered  to  the  extent  of  the  debts,  as  far  as 
the  property  will  go  towards  payment  of  the  same,  if  there  bo 
no  other  fund  for  payment  thereof  But  in  such  cases  the 
jurisdiction  is  in  the  ordinary  court  of  general  chancery  juris- 
diction and  not  in  the  court  of  probate.^ 

§  226.  In  the  case  of  Ifoore  v.  The  Widoiv,^  tlie  Supreme 
Court  of  Tennessee  say:  "By  our  law  all  the  real  estate  of  a 
deceased  debtor,  whether  of  a  legal  or  equitable  character,  is 
liable  to  satisftiction  of  his  just  debts,  subject  to  the  widow's 
right  of  dower,  which  has  preference  over  the  rights  of  credit- 
ors.    II.  Humph.  512." 

§  227.  In  Alabama,  if,  at  his  death,  the  decedent  is  seized 
of  an  inchoate  title  (other  than  a  government  pre-emption) 
to  lands,  such  interest  may  be  sold  in  probate  for  payment  of 
debts.  3 

§  228.  In  Massachusetts  the  jurisdiction  of  the  probate 
court  is,  by  statute,  extended  so  as  to  enable  it  to  subject  to 
sale  for  payment  of  debts,  lands  fraudulently  conveyed  away 
by  the  debtor  in  his  lifetime*  But  this  is  contrary  to  the  gen- 
eral rule  in  the  several  states.  Prior  to  this  statute  the  con 
trary  seems  to  have  been  the  law  in  Massachusetts.^ 

§  229.  In  VaugJian  v.  Holmes,^  the  Supreme  Court  of 
Alabama  say  that  if  the  question  was  before  them  for  the  first 
time  they  should  bo  disposed  to  hold  that  the  probate  court 
could  not,  under  the  authority  given  it  for  the  sale  of  lands, 
direct  the  sale  of  an  inchoate  equity  like  the  one  then  under 
consideration;  but  that  the  rule  was  too  firmly  established  to 
allow  a  departure  therefrom. 

1  Moore  v.  The  Widow,  11  Humph.  512. 

^ Ibid. 

'  Vaushau  v.  Holmes,  23  Ala.  593 ;  Perkins  v.  Winters,  7  Ala.  855 ;  Duval 
I'.  The  Bank,  10  Ala.  GOG;  Duval  v.  Losky,  1  Ala.  708;  Jennings  v.  Jenkins, 
9  Ala.  285. 

*  Norton  v.  Norton,  8  Cush.  524. 

'  Bancroft  v.  Andrews,  G  Cusli.  403. 
22  Ala.  593. 


91  JUDICIAL   AND    EXECUTION    SALES. 

§  230.  Tims  it  is  settled  in  Alabama  tliat  cqiiitaLlc  interest 
or  title  to  lands,  or  inclioate  interest  therein  of  any  kind, 
may  be  sold  in  j)robate  for  payment  of  debts,  on  application 
and  proper  showing  of  the  administrator,  and  that  the  pnr- 
chaser  will  take  the  title  of  the  decedent,' Vvdiatevcr  it  may  be, 
and  will  in  that  resj^cct  stand  in  lieu  of  the  heirs.  ^ 

§  231.  The  2)ower  to  subject  lands  of  a  decedent  for  pay- 
ment of  debts,  conferred  on  the  courts,  is  holden  to  be  remedial, 
and  applicable  "  as  avcII  in  relation  to  estates  where  the  dece- 
dent had  died  before  as  after  its  enactment." ^ 

§  232.  In  McDonald  v.  Allen, ^  it  is  said  that,  "  Upon  the 
death  of  a  debtor,  his  estate,  of  whatever  description,  stands 
for  the  payment  of  all  his  general  creditors  alike."  The 
executor  or  administrator  is  a  trustee  for  the  creditors  and  for 
the  lien,  to  administer  and  apply  the  proceeds  under  the  order 
and  as  the  instrument  of  the  court;  and  the  order  of  sale  can 
ordinarily  only  be  made  on  his  application.  The  contrary,  we 
liave  seen,  is  the  rule  as  to  application  in  Texas.  The  order, 
when  made,  operates  not  on  the  ]oersons  of  the  heirs,  but  on 
the  paramount  title  of  the  ancestor  on  which  the  debts  operated 
as  an  implied  lien.^ 

§  233.  But  sales  in  probate  may  not  be  made  of  a  decedent's 
lands,  to  pay  debts  which  arc  not  presented  within  the  time 
allowed  by  statute  for  presentation  of  claims.'' 

§  23-i.  The  administrator  or  executor  must  interpose  the 
statute  in  such  case  in  bar  of  claims,  and  may  not  Avaive  it.*' 

§  235.  And  though  it  has  been  held  that  he  is  not  bound 
to  plead  the  general  statute  of  limitations  in  bar  of  debts  pre- 
sented for  allowance,  and  that  sales  of  lands  ma}'  be  made  to 

'  Evans  v.  Mattliewson,  8  Ala.  99. 

"■  Fitzhugli  V.  Fitzhugli,  G  13.  Mon.  4. 

=■10  Ohio  St.  297;  Sheldon  v.  Newton,  3  Ohio  St.  494;  Lane  r.  Thonii> 
son,  43  N.  H.  320. 

*  Sheldon  V.  Newton,  3  Ohio  St.  494;  Grignon's  Lessee  v.  Astor,  2  IIcw. 
319;  Beauregard  v.  N.  Orleans,  18  How.  502. 

"  Jlogan  v.  White,  1  N.  11.  208;  Nowell  v.  Nowcll,  8  Greenl.  220;  FitcL 
V.  Witbeck,  2  Barb.  Ch.  IGl;  Moore  v.  White,  G  Johns.  Ch.  3G0;  Brown  ». 
Foster,  7  Humph.  373. 

«  Brown  v.  Foster,  7  Humph.  373;  Ilogan  v.  Wliilc,  11  X.  H.  208. 


SALES    OF    LANDS    IN    I'lIODATE.  05 

pay  debts  so  subject  to  be  bared;  yet  in  some  cases  it  is  belil 
that  any  one  or  more  of  tlie  heirs  may  interpose  t]ie  general 
statute  to  bar  claims  and  prevent  sales  of  their  patiimonial 
lands.  ^ 

II.     What  Dkcts  Lands  ok  a  Djcckdent  iUY  le  Sold  to  Pay. 

§  23G.  As  sales  of  land  under  the  statute  to  jjay  a  decedent's 
debts  can  only  be  made  in  probate,  as  a  general  rule,  of  land 
whereof  he  died  seized;  so,  by  a  like  rule,  the  lands  of  a 
decedent  can  only  be  sold  to  pay  such  debts  as  he  owed  at  the 
time  of  his  death,  and  was  legally  liable  to  pay." 

§  237,  In  other  words,  they  cannot  be  sold  to  pay  costs  or 
expenses  of  the  administration,  or  liabilities  created  or  incur- 
red by  the  administrator.  Such  a  sale  would  be  illegal  and 
void. 3 

'  Moore  ?).  White,  G  Jolins.  CIi.  3G0,  380;  Kizor  v.  Snoddy,  7  Incl.  442; 
Bond  1}.  Smith,  2  Ala.  GGO. 

2  Torrencc  v.  Torrencc,  53  Pcun.  St.  505,  511,513;  Dubois  t\  McLcau, 
4  McLean,  48G,  489;  Carnan  v.  Turner,  G  liar,  and  J.  C5 ;  Baker  v.  Kings- 
land,  10  Paige  Ch.  36G;  Farrar  ».  Dean,  24  3Io.  IG. 

'Dubois  ■«.  McLean,  4  ]McLcan,  48G,  489;  Sumner  v.  Williams,  8  Mass. 
199,  200;  Farrar  v.  Dean,  24  Missouri,  IG;  Wood  «.  Byington,  2  Barb.  Cli. 
387;  Fitch  v.  Whitbeck,  2  Barb.  Ch.  IGl ;  Carnan  v.  Turner,  G  Har.  and  .7. 
G5.  In  Farrar  v.  Dean,  the  Supreme  Court  of  Missouri,  in  the  delivery  of 
their  opinion,  held  the  following  language:  "The  administrator  has  no 
power  over  the  real  estate,  except  so  far  as  to  hold  it  for  the  payment  of 
the  debts  of  the  deceased;  and  when  there  are  no  debts  the  lands  descends 
to  the  heirs,  or  escheats  to  the  State;  and  it  is  not  in  the  power  of  the 
administrator  to  hinder  this  legally;  nor  can  the  probate  court  direct  or 
order  a  sale  of  real  estate  for  the  costs  accrued  after  the  administration 
begins,  and  only  because  it  did  begin.  Such  costs  are  not  debts  due  by 
the  deceased,  nor  debts  at  the  time  of  the  death  of  the  intestate."  *  *  * 
And  again,  in  the  delivery  of  the  same  opinion:  "It  is  bcj-ond  doubt 
that  the  debts  to  be  paid  by  the  sale  of  the  real  estate  of  a  deceased  person, 
were  debts  and  liabilities  of  that  person  only — debts  due  or  to  become 
due  by  him.  No  one  ever  imagined  that  the  legislature  designed  to  place 
the  power  in  the  hands  of  the  administrator  to  create  the  debt,  and  then 
to  sell  the  real  estate  of  the  decedent  to  pay  for  it.  When  there  is  no 
debts  there  is  no  law  to  sell  the  real  estate.  The  administrator  cannot 
procure,  in  such  a  case,  an  order  for  its  sale  without  a  violation  of 
law."  *  *  *  *  "We  must  hold  such  sales  invalid."  Farrar  i\  Dean, 
24  Mo.  IG,  18,  19,  20. 


96  JUDICIAL   AXD   EXECUTION   SALIiS. 

§  23S.  Kor  to  pay  costs  of  suit  recovered  against  tlie  admin- 
istrator or  estate,  nor  other  cost  not  incurred  by  deceased 
during  Ids  life  time.^  But  if  a  valid  sale  be  made  for  the 
l)ona  fide  purj)oses  of  paying  debts,  and  there  remains  of  the 
proceeds  a  surplus  fund,  then  this  remnant  may  be  applied  to 
pay  costs,  charges  and  expenses  of  administration,  or  of  litiga- 
tion, under  discretion  of  the  court.- 

§  239.  1\\ Dubois  v.  JfcZean,^  the  court  illustrate  the  prin- 
cijDle  of  the  text  in  the  following  terms:  "Again,  the  only 
debt  shown  to  support  the  sale  in  1S28,  was  one  of  two  hundred 
and  fifty-seven  dollars,  contracted  by  the  executors  in  August, 
1824.  ^  *  ^'  ''^  The  land  was  sold,  not  for  a  debt  of  Dubois, 
but  for  a  debt  contracted  by  the  executors.  '•■■  ^'  It  is  no 
answer  that  this  debt  was  contracted  by  the  executors  in  due 
course  of  administration,  and  for  the  benefit  of  the  estate." 

§  2-iO.  So  far  as  the  estate  is  concerned,  this  supposed  debt 
was  not  a  debt,  but  only  a  liability,  as  costs,  arising  incidentally 
in  the  course  of  administration,  and  whether  rightfully  or 
wrongfully  incurred,  was  not  one  for  which,  under  the  ordinary 
statutes,  real  estate  may  be  sold. 

§  241.  In  the  language  of  the  court,  in  Carnan  v.  Turner,'^ 
to  sul)ject  lands  of  a  decedent  for  payment  of  debt,  by  an  order 
of  sale  in  probate,  "  the  claimants  must  prove  themselves 
creditors  of  the  deceased  ancestor." 

§  242.  The  debt  must  be,  as  is  held  in  Wood  v.  Byincjtony' 
a  "  debt  due  from  the  testator."  And  in  the  more  recent  case 
of  Sanford  v.  Gran(/er,'^  it  is  holden  that  Wood  v.  Byington, 
is  authority  for  saying,  "  that  the  costs  awarded  against  execu- 
tors can  in  no  event  be  a  charge  on  real  estate  in  the  hands  of 
the  heir." 

§  243.  The  individual  lands  of  a  decedent  cannot  be  sold  to 
pay  a  copartnership  debt  until  after  the  individual  debts  of  the 

'Sandford  v.  Gran^tjer,  12  Barb.  392;   Farrar  v.  Dean,  24  Missouri,  IG, 
Wood  V.  Byington,  2  Barb.  Ch.  387;  Carey  «.  Dennis,  13  Md.  1. 
^  Drinkwater  «.  Drinkwatcr,  4  ]\[ass.  358,  359. 
34  McLean,  489. 
*  G  liar,  and  J.  Go,  G7. 
'2  Barb.  Ch.  387. 
« 12  Barb.  392,  403. 


SALKS    OF   LANDS    IN    PltOBATE.  97 

decedent   arc  all   satislied    and   the   copartnership   assets  are 
oxliaustcd.i 

§  2tt'l.  The  individual  creditors  have  a  right  to  he  first  paid 
out  of  the  individual  assets;  and  copartnership  creditors  have 
the  same  preference  as  to  the  copartnership  assets.  AVhen  the 
latter  are  all  exhausted,  then  if  the  copartnership  debts  be  not 
all  paid,  the  creditors  of  the  copartnership  may  pursue  the 
individual  property  of  the  deceased  member  or  members  of  the 
copartnership,  may  cause  their  claims  to  be  allowed  in  probate, 
and  in  default  of  personal  assets  the  administrator  may  obtain 
a  license  or  decree  for  sale  of  lands  to  pay  the  same;  but  not 
until  the  individual  debts  of  the  decedent  are  all  provided  for.^ 

III.     Wno  MAY  Conduct  tue  Sale. 

§  245.  Under  the  common  law  lands  were  not  sold  by  pro- 
ceedings in  probate  for  payment  of  debts.  ^ 

§  246.  Under  the  enactments  of  the  several  American  States, 
in  which  such  sales  are  made,  they  are  conducted  and  made 
under  the  supervision  and  approbation  of  the  court  by  the 
executor  or  administrator;  and  in  nearly  all  cases  on  his  appli- 
cation. A  stranger,  the  sheriff  as  such  officer,  or  other  person, 
cannot,  in  probate,  be  authorized  to  sell.  Their  sale  would  be 
void.-^     And  so  of  a  special  administrator. ^ 

§  247.  In  Long  v.  Burnett^^  the  Supreme  Court  of  Iowa, 
Lowe,  Justice,  in  treating  of  the  powers  of  a  sjDCcial  adminis- 
trator, in  reference  to  sales  of  land  in  probate  say,  "His  func- 
tions are  limited  to  a  few  described  duties,  in  relation  to  the 
preservation  of  the  personal  assets,  and  these  cease  as  soon  as 
a  regular  administrator  is  appointed.  lie  cannot  be  sued. 
The  statute  of  limitations  docs  not  run  against  the  creditors 

'  Moline  «.  Webster,  2G  111.  233,  239. 

2  Pahlman  v.  Graves,  20  111.  405:  1  Story  Eq.  Jur.  Sec.  075;  3  Keut,  Com. 
04;  Wilder  ■».  Keller,  8  Paige,  107;  Story,  Part.  Sec.  303;  McCulloh  v. 
Dashiell,  1  Harris  &  Gill,  9G;  Moline  «.  Webster,  20  111.  239. 

=  Bcrgin  v.  ]McFarlaiul,  0  Foster,  N.  H.  530. 

*  Croucli  v.  Eveletli,  12  Mass.  503;  Swan  »,  "\Vlieeler,  4  Day,  137;  Jarvis 
tJ.  Kusick,  12  Mo.  03 ;   Long  'o.  Burnett,  13  Iowa,  28 

*  Long  «.  Burnett,  13  Iowa,  28. 
« 13  Iowa,  28,  33,  34. 


98  JUDICI-iVL   AXD    EXKCUTION    SALES. 

of  the  estate  during  tlie  period  of  Lis  agency.  lie  is  simply 
an  agent,  and  not  an  administrator,  lie  lias  no  power  to  settle 
the  estate;  mnch  less  power  to  sell  land  for  any  pnrpose.  It 
was  no  more  competent  for  the  judge  of  probate  to  grant  liim 
license  to  sell  land  than  that  of  any  third  person.  His  act  in 
doing  so  was  extra  judicial  and  void.  The  Judge's  power  over 
real  estate  of  deceased  persons  is  derived  through  the  medium 
of  regular  administration.  This  was  wanting  in  the  case 
before  us.  Hence  the  jurisdiction  did  not,  as  it  could  not, 
under  the  circumstances,  attach."  The  court  then  lay  down 
the  rule,  in  that  case,  that  for  such  want  of  a  regular  adminis- 
trator, and  of  jurisdictional  power  in  the  probate  court  making 
the  order  of  sale,  such  sale  should  be  treated  as  void  in  a 
collateral  proceeding.  That  "  the  j)ower  to  grant  a  license  to 
sell  real  estate  to  pay  debts  does  not  arise  till  a  petition,  as 
the  law  directs,  is  presented  by  a  legal  administrator."  That 
'"when  such  a  petition  is  presented,  jurisdiction  over  that 
particular  subject  is  acquired,  and  the  subsequent  proceedings, 
although  those  of  a  court  of  inferior  and  limited  powers,  will 
be  presumed  as  regular  and  conclusive  as  those  of  courts  of 
general  jurisdiction,  and  shall  not  be  collaterally  assailed." 

§  248.  A  sale  of  lands  in  probate,  based  on  a  special  act  of 
the  legislature  authorizing  such  order  and  sales,  is  to  be  made 
by  the  administrator,  and  when  made  Avill  be  holden  to  have 
been  made  by  him  in  his  capacity  of  administrator,  and  not  Ha 
a  commissioner  of  the  courts.  ^ 

§  249.  But  although  no  one  but  the  administrator  or  execu- 
tor may  be  authorized  by  order  in  probate  to  sell ;  yet,  quere, 
if  any  one  or  more  of  several  executors  or  administrators  of 
an  estate  may  not  be  empo'wcred  by  such  order  to  sell  instead 
of  their  whole  number. - 

IV.     Ai'i'LicATiox  TO  Sell  :    How,  axd  in  avhat  Ti:Mr:  to  be 

Made-. 

§  250.     As  no  one  but  the  executor  or  administrator  can, 

■  Corbell  i).  Zcluff,  12  Gratt,  22G,  335. 

^.Jackson  v.  Ivobiuson,  4  Wend.  437;   "Woitman  v.  Skinner,  1  Bcaslcy, 
(N.  J.)  538. 


salilS  of  lands  in  I'lioiJATi:.  90 

uiulcr  tlio  statute,  as  a  general  rule,  be  aiitborized  in  probate 
to  sell  the  lands  of  a  decedent  for  payment  of  debts, ^  so  it 
follows,  as  a  general  rule,  that  the  application  for  the  order  to 
sell  is  to  be  made  by  the  executor  or  administrator,  wliicli 
over  there  be. 

§  251.  But  to  this  rule  there  arc  some  exceptions.  In 
Texas  an  heir,  legatee  or  creditor,  must  join  in  the  applicatioii 
under  the  act  of  February  25th,  1843.  Prior  to  tlie  passage 
of  that  act  the  administrator  alone  might  app]3\- 

§  252.  It  is  held  that  where  there  arc  several  administrators 
(tr  executors  of  an  estate  any  one  or  more  of  them  may  apply, 
and  may  be  authorized  by  the  court  of  probate  to  sell.^ 

§  253.  In  Iowa  the  term  administrator  is  by  statute  nuidc 
to  apply  alike  to  executors  and  administrators. -^ 

§  25-1.  The  apjilication  of  the  administrator  or  executor  for 
an  order  of  sale  of  lands  to  pay  debts  must  be  a  timely  one,^ 
and  the  court  are  the  judges  in  all  cases  of  the  reasonableness 
of  the  time,  when  no  time  is  iixed  by  law.'' 

§  255.  In  some  cases,  one  year  from  the  grant  of  adminis- 
tration has  been  adjudged  a  suitable  time  within  which  to 
apply."? 

I3ut  Ave  apprehend  that  there  are  cases  in  M'hich  one  year 
would  not  be  a  reasonable  time. 

Mucli  depends  upon  the  time  allowed  for  presenting  and 
]n-oving  up  debts,  and  for  settling  the  estate.  The  court  are 
to  judge,  if  there  be  no  time  limited,  taking  all  circumstances 
into  consideration. 

'  Cluipt.  IV.  Xo.  3 ;  Crouch  v.  Eveletli,  12  ]\rass.  503 ;  Swan  v.  Wheeler,  4 
Day,  137;  .James  t\  Kusick,  13  Mo.  G3 ;  Floritinc  ■».  Barton,  3  Wall.  210, 
216;  Long  r.  Burnett,  13  Iowa,  28;  Palmer  v.  Palmer,  13  Gray,  330. 

'  Miller  v.  Miller,  10  Texas,  319. 

^Jackson  v.  Robinson,  4  Wend.  43G.  But  see  to  the  contrary,  Grei^ory 
V.  ]\IcPhcrson,  13  Cal.  5G3;  Wortman  v.  Skinner,  1  Beasley,  (N".  J.)  538. 

*  Berision  of  18G0,  Sec.  2333. 

^  Moore  «.  White,  G  .Johns.  Ch.  37G;  Ricard  t\  Williams,  7  Wheat.  59, 
115;  Smith  v.  Button,  4  Shep.  308;  Langworthy  v.  Baker,  23  111.  484. 

*  iloore  V.  White,  0  .Johns.  Ch.  37G;  Jackson  v.  Robinson,  4  Wend.  436, 
442. 

■  Moore  v.  White,  G  Joluis.  Ch.  37G,  377. 


100  JUDICIAL   AND    EXECUTION   SALES. 

In  Palmer  v.  Palmer'^  four  years  is  held  not  to  be  nn 
unreasonable  time  in  wliicli  to  make  the  application  to  sell. 

§  250.  Orders  of  sale  made  after  an  unreasonable  length  of 
time  from  the  grant  of  administration,  and  sales  made  thereon, 
are  lield  to  be  absolutely  void.^ 

§  257.  In  ILjde  v.  Parmer,^  it  is  held  that  three  years, 
under  the  statute,  is  the  time  limited  in  wln'ch  to  pass  the  title 
by  a  sale  of  lands  in  probate,  as  against  a  hojia  fide  purchaser 
from  the  heirs,  and  that  after  that  time  the  land  is  diseharffed 
Irom  the  statutory  lien,  and  that  tlie  functions  of  the  probate 
court  over  tlie  same  then  cease. 

§  258.  The  application  should  be  accompanied  with  a  show 
of  diligence  on  the  j^art  of  the  administrator  in  lirst  adminis- 
tering and  exhausting  the  j^ersonalty.^ 

§  259.  If  one  order  of  sale  prove  insutiicicnt,  as  to  the  sum 
raised,  another  order  or  orders  may  be  made,  as  may  be  neces- 
sary, from  time  to  time."  The  debts  should  first  be  allowed 
of  record;  but  if  omitted  the  entry  may  be  made  mine  pro 
iunc.^ 

%  260.  The  a]ip]icativ)U  must  be  by  petition,  identifying  the 
lands  intended  to  be  sold,  and  setting  forth  whatever  under 
die  statute  is  required  to  give  the  court  jurisdiction  of  the 
particular  case  aiid  subject  matter  thereof,  which  should  be  so 
set  forth  as  to  be  good  u])on  demurrer.'^ 

§  201.  The  action  of  the  court  or  decree,  the  notice  of  sale, 
and  the  sale  itself,  must  all  conform  to  the  same  subject  matter 

'  13  Gray  (]Mass,)  :]2G. 

-  Langwovth  v.  Cakcr,  23  111.  4S1. 

^1  Barb.  75;  Fitch  i-.  AVitljeck,  2  Barb.  Ch.  IGl ;  Furguson  i\  Biwvn,  1 
Bradf.  10. 

^  Furguson  v.  Brown,  1  Bradf.  10. 

'■>  Farringtou  n.  King,  1  Bradf.  182. 

«  Farrington  v.  King,  1  Bradf.  182,  191,  192. 

''  Grignon's  Lessee  r,.  Astor,  2  How.  319;  Beauregard  v.  Xew  Orleans,  18 
IIow.  592;  Alabama  Conference  «.  Price,  42  Ala.  39;  Cooper  'o.  Sunderland, 
3  Iowa,  114;  Moore  v.  Neil,  39  111.  25G;  Frazier  t\  Steenrod,  3  Iowa,  330; 
Long  v.  Burnett,  13  Iowa,  28;  Sheldon  v.  Newton,  3  Ohio  (N.  S.)495; 
Coates  «.  Loftus,  4  Mon.  444;  Gcrrard  r.  Johnson,  12  Ind.  G3fi;  Morris®. 
Ilogle,  37  111.  150;  Morrow  ?).  "Weed,  4  Iowa,  77;  Florentine  i?.  Barton,  2 
AVall.  210,  21G;  Gregory  v.  McPherson,  13  Cal.  5G2,  570. 


SALTCS   OF    I,A^;DS   IN    TKOBATE.  101 

or  land  dcsci'il)C'(l  in  the  petition  as  the  hind  sought  to  be  sokh 
IS^o  title  will  pass  if  the  j^etition  be  in  reference  to  one  tract 
of  land,  and  the  decree,  sale,  or  notice  of  sale,  be  in  reference 
to  another  and  different  one.^ 

§  2G2.  The  petition  should  also  show  the  death  of  the  dece- 
dent ;2  that  the  land  sought  to  be  sold  was  owned  by  him  at 
his  decease; 3  should  show  the  state  of  the  personal  assets,  and 
the  insufficiency  thereof  to  pay  the  debts  ;'i  and  all  such  other 
matters,  if  any,  that  by  local  statute  may  be  required.  It 
must  likewise  be  sworn  to  as  may  by  statute  be  required.'' 
It  is  not  necessary,  as  a  general  rule,  to  specify  the  several 
debts,  yet  a  statement  of  the  aggregate  amount  is  required.  ^ 

§  2G3.  In  Tennessee,  a  report  showing  the  state  of  the 
assets  is  first  to  be  made  and  affirmed  by  the  court  as  a  basis 
for  the  application.'' 

'  Frazier  t>.  Stcenrod,  7  Iowa,  3-10;  Weed  v.  Edmonds,  4  Ind.  408; 
Williams  v.  Blair,  25  Miss.  78.  In  SclincU  v.  Chicago,  38  111.  382,  there  is 
I'uling  seemingly  to  the  contrary,  but  in  that  case  the  land  sold  was  the 
same  as  the  description  in  the  petition,  whereas  the  order  of  sale  was  that 
the  land  described  in  the  petition  be  sold,  naming  it  by  a  wrong  number. 
;Vnd  if  application  be  made  and  exhausted  by  a  decree  and  sale  of  real 
estate  to  pay  the  then  known  debts  of  a  decedent,  and  afterwards  other 
debts  appear  against  the  estate  requiring  a  further  sale  for  their  payment, 
then  there  must  be  a  ncAv  application  for  such  additional  decree  and  sale, 
substantially  as  if  none  before  had  ever  been  made.  Gilchrist's  Admr.  t. 
Ilea,  9  Paige  Ch.  GG. 

2  Comstock  V.  Crawford,  3  Wall.  39G,  403;  Florintine  v.  Barton,  3  Wall. 
210,  216 ;  Grifljth  v.  Frazier,  8  Crauch,  9,  23.  In  Illinois  it  should  give 
also  the  names  of  the  heirs.    Turney  v.  Turney,  24  111.  625. 

3  Wood  V.  Nason,  5  Mass.  243,  358;  McCandish  v.  Kern.  13  Gratt.  G15; 
Johnson  «.  Collins,  12  Ala.  322;  George  v.  Williams,  26  Mo.  190,  193; 
Drinkwater  v.  Drinkwater,  4  Mass.  354;  Hathaway  v.  Valentine,  14  Mass. 
500;  Griffith  v.  Frazier,  9  Cranch,  23. 

*  Van  Nostrand  ■p.  Wright,  Hill  &  D.  (N.Y.)  2G0;  Small  v.  Cromwell,  lb. 
154;  Cralle  v.  Meem,  8  Gratt.  190;  Gregory  v.  McPherson,  13  Cal.  562; 
Crippin  v.  Crippin,  1  Head.  (Tenn.)  128. 

*  Cooper  v.  Sunderland,  3  Iowa,  114,  137,  138;  Babbitt  v.  Doe,  4  Ind.  355; 
Thornton  v.  Mulquinne,  12  Iowa,  549,  554;  Parker  ».  Nichols,  7  Pick,  111, 
IIG;  Campbell  v.  Knight,  2G  Maine,  244;  Little  v.  Sennett,  7  Iowa,  324; 
Jlorrow  V.  Weed,  4  Iowa,  77. 

«  Collins  V.  Farnesworth,  8  Blackf.  575. 
''  Frazier  v.  Pankej-,  1  Swan  (Tenn.)  75. 


102  JUDICIAL  AND   EXECUTION   SALES. 

§  264.  In  Mississij)pi,  the  personal  estate  must  first  be 
found  insufficient  to  pay  the  debts;  and  this  fact  is  required 
to  be  found  bj  the  verdict  of  a  jury,  before  any  order  for  the 
sale  of  a  decedent's  lands  can  be  made.i  And  if  the  personalty 
be  wasted  by  the  administrator,  by  reason  of  which  the  per- 
sonal assets  are  insufficient  to  pay  the  debts,  it  does  not  follow 
that  there  is  to  be  a  sale  of  tiie  realty  for  that  purpose;  but 
the  remedy,  in  such  case,  is  against  the  administrator  and  his 
sureties  on  their  bond.  The  heirs  may  set  up  such  waste,  and 
tliereby  prevent  an  order  of  sale.^ 

§  205.  Some  of  the  cases  vest  the  jurisdiction  in  an  applica- 
tion by  the  administrator  to  sell  a  decedent's  lands  on  a  proper 
petition  alone ;3  others  on  notice  and  petition.^  In  either 
case,  when  jurisdiction  has  attached,  the  decree  is  regarded  as 
an  adjudication  of  all  previous  questions,  both  as  to  jurisdic- 
tion and  merits,  and  as  shutting  out  all  subseqnent  inquiry 
into  the  same,  or  as  to  their  sufficiency,  except  on  an  appeal.^ 
In  all  cases  the  power  of  the  court  to  decree  and  sell  is  the 
creature  of  the  statute,  and  its  requirements  must  be  con- 

'  Turner  v.  Ellis,  24  Miss.  173,  179. 

'-  Turner  v.  Ellis,  24  Miss.  173,  180 ;  Paine  «.  Pendleton,  32  Miss.  320. 

'  Grignon's  Lessee  v.  Astor,  3  How.  3G9,  338 ;  Beauregard  v.  New  Orleans, 

18  How.  502,  503.     See  Part  1st.  Chap.  2,  notes,  and  George  v.  Watson, 

19  Texas,  354,  370,  371;  McPliersou  v.  Cundiff,  11  Sergt.  &  E.  422;  Alex- 
ander 1).  Maverick,  18  Texas,  179. 

*  Morrow  «.  Weed,  4  Iowa,  77;  Davenport  v.  Smith,  15  Iowa,  213;  Frazicr 
r.  Steenrod,  7  Iowa,  339 ;  Myers  v.  McDonald,  47  111.278;  Moore  r.  Xeil. 
39  111.  25G;  Morris  v.  Hogle,  37  111.  150;  Hawkins  v.  Hawkins,  28  Ind.  GG; 
Stow  V.  Kimball,  28  111.  108 ;  Doc  v.  Anderson,  5  Ind.  33.  But  the  notice 
need  not  name  the  heirs  by  name  under  the  statute  in  Illinois.  Stow  v. 
Kimball,  29  111.  93.  So  much  of  Turney  v.  Turney,  24  111.,  as  rules  differ- 
ently is  disavowed. 

^Grignon's  Lessee  v.  Astor,  2  How.  319;  Morrow  «.  Weed,  4  Iowa,  77, 
87 ;  Sheldon  v.  Newton,  3  Ohio  (N.  S.)  495 ;  Simpson  v.  Hart,  1  Johns.  Ch. 
91;  Beauregard  v.  New  Orleans,  18  How.  502;  Carter 'P.  Waugh,  42  Ala. 
452;  Paul  v.  Ilussey,  35  Maine,  97;  Comstock  v.  Crawford,  3  Wall.  39G. 
And  if  there  be  on  file  a  defective  or  insufficient  notice,  purporting  to  be 
the  one  given,  yet  where  the  decree  states  that  "  notice  according  to  law 
was  given  of  the  pendency  of  the  cause,"  it  will  be  intended  that  such 
was  the  case,  and  that  other  proof  Avas  received  thereof  by  the  court. 
Moore  v.  Neil,  39  111.  25G. 


SALES    OK    LANDS   IN"    I'KOBATi:.  103 

fonncd  to;  sucli-  coniorinitv,  liowever,  is  presiiincd  to  have 
existed  after  decree,  where  jurisdiction  lias  attached. 

§  2C0.  In  a  probate  proceeding  in  rem,  by  an  administrator 
or  execntor  for  the  sale  of  a  decedent's  lands  to  pay  debts,  if 
no  notice  is  required  by  the  statute,  then  none  need  be  given ; 
such  proceeding  is  the  creature  of  the  statute  ;i  and  it  is  suffi- 
cient if  the  statute  be  conformed  to.  If  notice  be  left  to  the 
discretion  of  the  court,  then  a  reasonable  notice  will  be  neces- 
sary, to  avoid  reversal  on  error. 

§  267.  If  notice  or  other  thing  be  by  the  statute  or  local 
practice  required,  and  the  statute  or  local  decisions  declare  tlie 
decree,  or  sale  invalid  if  conformity  to  such  requirements  does 
not  in  the  record  appear  to  have  existed,  then  such  conformity 
must  appear  from  the  record,  in  order  to  support  the  sale.- 
But  if  such  statute  be  only  directory,  then,  although  notice  is 
necessary  to  avoid  error  on  an  appeal,  yet  it  is  not  absolutely 
essential  to  the  validity  of  the  decree  and  sale,  when  they  are 
questioned  in  a  collateral  proceeding.  The  presumption  of 
law  is,  after  decree  and  sale,  that  the  statute  was  conformed  to; 
and  the  proceedings  are  binding,  if  the  jurisdiction  of  the 
court  had  attached  over  the  particular  case,  by  a  j^etition  good 
ujion  demurrer. 3  Kor  does  it  follow  that  the  proceedings  are 
not  binding,  where  the  statute  is  but  directory,  even  if  it 
appear  that  notice  is  wanting;  for  though  the  omission  may 
be  error,  yet  if  not  reversed,  or  set  aside,  the  decree  is  binding, 
even  if  it  appear  from  the  record  tliat  such  notice  had  not 

'  Bergin  «.  McFarland,  G  Foster  (N.  H.)  530;  Clark  «.  Thompson,  47  111. 
25,  28;  Florentine  c.  Barton,  2  Wall.  210,  210. 

-  Guy  «.  Pierson,  21  Ind.  18;  Gelstrop  v.  Moore,  20  Miss.  200;  Coopers. 
Sunderland,  3  Iowa,  144,  137,  138;  Thornton  v.  Mulquinnc,  12  Iowa,  549, 
554;  Babbit  v.  Doe,  4  Ind.  355. 

'^  Morrow  «.  Weed,  4  Iowa,  77;  Shelden  v.  Newton,  3  Ohio,  (N.  S.)  405; 
Reeves  «.  Townsend,  2Zab.  390;  Wilson  ».  Wilson,  18  Ala.  170;  Clark  «. 
Blacker,  1  Ind.  215;  Paul  ».  Hussey,  35  Maine,  97;  Fox  «.  Hoit,  12  Conn. 
491;  Raymond  v.  Bell,  18  Conn.  81;  AYright  v.  Warner,  1  Doug.  384; 
Grignon's  Lessee  «.  Astor,  2  How.  319 ;  ^McPherson  v.  Cunliff,  11  Sergt.  &  R. 
422;  Clarke  v.  Holmes,  1  Doug.  390;  Elliott  v.  Piersol,  1  Pet.  328;  Thomp- 
son D.Tolmie,  2  Pet.  157 ;  Vorhees  v.  The  Bank,  10  Pet.  473 ;  Wright  ».  ]Marsh, 

G.  Green,  111;  Florentine  v.  Barton,  2  Wall.  210,  210;  George  v.  Watson, 
19  Texas,  354. 


iOi  JUDICIAL    AKD    EXECUTION    SALES. 

been  given ;  for  the  power  of  the  conrt  is  over  the  property 
songht  to  be  affected  by  the  order,  or  decree,  when  the  case  is 
in  rem^  "  witliout  regard  to  the  parties  who  may  have  an  inter- 
est in  it.  All  the  world  are  parties."  By  the  decree  and  sale, 
"  the  estate  passes  by  operation  of  law."  The  conrt  lays  hold 
of,  and  passes  the  title,  by  a  right  paramonnt  to  that  of  the 
heirs.  It  does  this  under  the  same  authority  that  confers  the 
heirship:  Tlie  authority  of  the  legislature,  which  has  full 
power  to  control  the  property  of  decedents.^ 

Such  seems  to  be  the  settled  rule  of  decision  in  the  Supremo 
court  of  the  United  States,  in  the  absence  of  a  positive  statute 
declaring  sales  void  if  notice  bo  required,  and  does  not  from 
the  record,  appear  to  have  been  given ;  and  such  we  conceive 
to  be  the  more  correct  doctrine.  The  same  power  that  confers 
heirship  may  postpone  it,  and  hold  the  property  first  liable  for 
the  decedent's  debts,  and  as  a  consequence  may  confer  the 
power  to  so  apply  it  on  the  probate  court  without  notice  to  the 
intended  heir,  whose  right  attaches  to  the  reiddue  and  not  to  the 
estate  generally,  in  its  unadmini stored  condition.  True  the 
legal  title  descends  to  the  heir  at  once,  as  it  can  not  be  in 
abeyance;  but  so  descends,  subject  to  a  prior  lien  in  law  for 
the  ancestor's  debts — a  lien  ^vhicli  the  power  that  creates 
both  it  and  the  heirshij),  may  enforce  in  its  o^vn  way.  The 
probate  court  acts  upon  the  title  of  the  ancestor,  subject  to 
which  action  the  lien  takes  title.  "  The  administrator  repre- 
sents the  land," 2  and  no  notice  is  ordinarily  necessary  to  the 
validity  of  the  sale  in  proceedings  hi  rem. 

'  Florentine  v.  Barton,  3  "Wall.  210. 

-  Moore  v.  Stark,  1  Ohio  St.  369;  Grignon's  Lessee®.  Astor,  2  How.  319; 
Bcanregard  «.  N.  Orleans,  18  How.  497;  "Williamson  v.  Leland,  2  Pet.  G5T; 
Batcher  v.  Batcher's  admr.  41  Ala.  2G;  Sheldon  v.  Newton,  3  Ohio,  St.  494; 
McPherson  ®.  Cunliff,  11  Sergt.  &  R.  432;  Perkins  v.  Fairfield,  11  Mass. 
227;  Saltonstall  «.  Eiley,  28  Ala.  1G4;  Paine  v.  Moorland,  15  Ohio,  442; 
RohbB.  Irwin,  15  Ohio,  698;  Benson  v.  Cilley,  8  Ohio,  St.  614;  Borden 
V.  The  State,  6  Eng.  519 ;  Tongue  v.  Morton,  6  Har.  &  J.  23 ;  Rice  v.  Park- 
man,  10  Mass.  328;  Sohier  v.  Mass.  Gem.  Hos.  3  Gush.  487;  Ludlow's 
heirs  v.  Johnson,  3  Ohio,  500;  Adams  v.  Jeffries,  12  Ohio,  253;  Voorhees  t\ 
Bk.  United  States,  10  Pet.  473;  United  States  v.  Aredondo,  12  Pet.  709; 
Rhode  Island  i\  Mass.  12  Pet.  718;  Stow  v.  Kimball,  28  111.  93;  Florentine 


SALES    OF   LANDS   IN    I'EOBATE.  105 

§  2GS.  This  question  of  notice  and  personal  jurisdiction  in 
probate  sales  eame  before  the  Iowa  Supreme  Court  in  Good  v. 
Norley,  at  December  term,  1869.  Good  filed  a  petition  in 
cliancery  in  the  District  Court  of  Polk  county  to  quiet  title  to 

V.  Barton,  2  Wall.  210,  216;  Lane  v.  Thompson,  43  N.  II.  320.  In  Sheldon 
V.  Newton,  above  cited,  the  supreme  court  of  Ohio  review  the  subject  of 
such  sales,  and  of  judicial  sales  generally,  with  great  ability,  and  say:  "  1. 
A  settled  axiom  of  the  law,  furnishes  the  governing  principle,  by  which 
these  proceedings  are  to  be  tested.  If  the  court  had  jurisdiction  of  the 
subject  matter,  and  the  parties,  it  is  altogether  immaterial  how  grossly 
irregular,  or  manifestly  erroneous,  its  proceedings  may  have  been ;  its  final 
order  can  not  be  regarded  as  a  nullity,  and  can  not  therefore  be  collaterally 
inipeaclied.  On  the  other  hand,  if  it  proceed  without  jurisdiction,  it  i3 
equally  unimportant  how  technically  correct,  and  precisely  certain,  in 
point  of  form,  its  record  may  appear;  its  judgment  is  void  to  every  intent 
and  for  every  purpose,  and  must  be  so  declared  by  every  court  in  which  it 
is  presented.  In  the  one  case  the  court  is  invested  with  the  power  to 
determine  the  rights  of  the  parties,  and  no  irregularity  or  error  in  the  exe, 
cution  of  the  power,  can  prevent  the  judgment  while  it  stands  unreversed, 
from  disposing  of  such  rights  as  fall  within  the  legitimate  scope  of  its 
adjudication;  wliile  in  the  other  its  authority  is  wholly  usurped,  and  its 
judgments  and  orders,  the  exercise  of  arbitrary  poAver,  under  the  forms 
but  without  the  sanction  of  law.  The  power  to  hear  and  determine  a 
cause,  is  jurisdiction;  and  it  is  coram  judice  whenever  a  case  is  presented 
which  brings  this  power  into  action.  But  before  this  power  can  be 
affirmed  to  exist  it  must  be  made  to  appear  that  the  law  has  given  the 
tribunal  capacity  to  entertain  the  complaint  against  the  person  or  thing 
sought  to  be  charged  or  affected ;  that  such  complaint  has  actually  been 
preferred ;  and  that  such  person  or  thing  has  been  properly  brought  before 
the  tribunal  to  answer  the  charge  therein  contained.  When  these  appear 
the  jurisdiction  has  attached;  the  right  to  hear  and  determine  is  perfect; 
and  the  decision  of  every  question  thereafter  arising  is  but  the  exercise  of 
the  jurisdiction  thus  conferred;  and  whether  determined  rightfully  or 
wrongfully,  correctly  or  erronously,  is  alike  immaterial  to  the  validity- 
force,  and  effect  of  the  final  judgment,  when  brought  collaterally  in  ques, 
tlon.  United  States  i;.  Aredondo,  G  Pet.  709;  Rhode  Island  «.  "Mass.  12 
Pet.  718.  We  wholly  dissent  from  the  position  taken  in  argument,  that 
the  jurisdiction  of  the  court,  or  the  effect  of  its  final  order,  can  be  made  to 
depend  upon  the  records  disclosing  such  a  state  of  facts,  to  have  been 
shown  in  evidence,  as  to  warrant  the  exercise  of  its  authority.  To  adopt 
the  language  of  the  court,  in  answer  to  the  same  position,  in  Voorhees  v. 
The  U.  S.  Bank,  10  Pet.  473 :  'We  cannot  hesitate  in  giving  a  distinct  and 
unqualified  negative  to  this  proposition,  both  on  principle  and  authority 
too  well  and  long  settled  to  be  questioned.'  It  was  distinctly  repudiated 
in  the  early  case  of  Ludlow's  heirs  v.  Johnson,  3  Ohio  5G0;  and  has  been 


106  JUDICIAL   AND    EXECUTION   SAXES. 

a  tract  of  land,  claiming  that  in  1852  it  was  purcliased  at  a 
sale  thereof,  in  probate,  for  payment  of  debts,  made  under 
order  in  probate  by  the  administrator  of  John  IS^orley,  deceased. 
That   a  deed  therefor  was  duly  executed  and  by  the  court 

no  less  positively  denied  in  every  subsequent  case,  including  Adams  v. 
Jeflries,  12  O.  R.  253.  The  tribunal  in  whicb  these  proceedings  were  bad, 
was  a  court  of  record  of  general  common  law  and  chancery  jurisdiction; 
and  while  it  is  true,  that  in  the  exercise  of  this  particular  authority,  it  may 
be  regarded  as  a  tribunal  of  special  and  limited  powers  prescribed  by 
statute,  it  is  still  to  be  remembered  that  it  was  the  tribunal  created  by  the 
constitution  with  the  exclusive  jurisdiction  over  probate  and  testamentary 
matters,  and  had  no  one  single  characteristic  of  those  inferior  coi;rts  and 
commissions  to  which  the  rule  insisted  upon  has  been  applied  by  the 
English  and  American  courts.  All  its  proceedings  are  recorded  and  con- 
stitute records,  in  the  highest  sense  of  the  term,  imparting  absolute  verity, 
not  to  be  impaired  by  averment  or  proof  to  the  contrary,  and  conclusively 
binding  the  parties,  and  all  who  stand  in  privity  Avith  them.  The  distinc- 
tion is  not  between  courts  of  general  and  those  of  limited  jurisdiction, 
but  between  courts  of  record  that  are  so  constituted  as  to  be  competent  to 
decide  on  their  own  jurisdiction,  and  to  exercise  it  to  a  final  judgment 
without  setting  forth  the  facts  and  evidence  on  which  it  is  rendered,  and 
whose  records  when  made  import  absolute  verity ;  and  those  of  an  inferior 
grade,  wlaose  decisions  are  not  of  themselves  evidence,  and  whose  judg- 
ments can  be  looked  through  for  the  facts  and  evidence  which  are 
necessary  to  sustain  them.  McCormick  «.  Sullivant,  10  Wheat.  199 ;  Gris- 
wold  V.  Sedgwick,  1  Wend.  131;  Baldwin  v.  Hale,  17  J.  R.  273;  Grignon's 
Lessee  v.  Astor,  2  How.  341 ;  2  Bin.  R.  255 ;  4  lb.  187.  Orphans'  courts,  and 
courts  of  probate,  when  constituted  courts  of  record,  have  uniformly  been 
held  of  the  former  description.  Thompson  v.  Tolmie,  2  Pet.  165 ;  Grig- 
non's Lessee  V.  Astor,  supra;  11  Serg.  &  Rawle,  429;  11  Mass.  221.  In 
respect  to  them,  when  it  appears  that  they  have  proceeded  with  jurisdic- 
tion over  the  subject  matter  and  the  parties,  we  fully  agree  with  the 
supreme  court  of  Pennsylvania  in  saying:  'If  the  purchaser  was  respon- 
sible  for  their  mistakes  in  point  of  fact,  after  they  had  adjudicated  upon 
the  facts,  and  acted  upon  them,  those  sales  would  be  snares  for  honest 
men ; '  and  with  the  supreme  court  of  the  United  States,  in  affirming  that 
the  reasons  upon  which  their  decisions  have  rested  'are  founded  on  the 
oldest  and  most  sacred  principles  of  the  common  law.  They  are  rules  of 
property,  on  which  the  repose  of  the  country  depends;  titles  acquired 
under  the  proceedings  of  courts  of  competent  jurisdiction  must  be  deemed 
inviolable  in  collateral  actions,  or  none  can  know  what  is  his  own;  and 
there  are  no  judicial  sales  around  which  greater  security  ought  to  be 
placed,  than  those  made  of  the  estates  of  decedents,  by  order  of  those 
courts  to  whom  the  laws  of  the  States  confide  full  jurisdiction  over  the 
subjects.'    The  purchaser  is  bound  to  look  no  further  back  than  the  order 


S.VLES    OF   LANDS   IN    PPwOBATE.  107 

approved;  but  that  the  same  was  lost  before  recording.  In 
tlie  proceeding  in  probate  under  Vvdiich  the  sale  occurred,  the 
administrator  made  the  widow  (whose  dower  had  already  been 
assigned)  and  the  infant  heir — the  only  child  of  tlie  decedent — 

of  the  court,  made  in  a  proceeding  which  the  law  lias  empowered  it  to 
entertain,  and  with  the  proper  parties,  or  subject  matter  before  it.  All 
else,  we  are  bound  to  presume  in  favor  of  its  action;  and  neither  in  judg- 
ment of  law,  nor  in  fact,  is  it  to  be  treated  with  the  least  distrust.  The 
proper  application  of  this  principle  disposes  of  all  the  exceptions  taken 
to  these  proceedings,  arising  after  the  jurisdiction  of  the  court  should 
liave  attached.  *  *  *  *  As  it  is  not  denied  that  the  court  was  invested 
with  power  to  entertain  the  proceeding,  and  as  the  lands  were  situated 
within  the  limits  of  its  jurisdiction,  it  only  remains  to  consider  whetlier 
notice  to  the  heirs  was  indispensible  to  the  jurisdiction  of  the  court;  and 
if  so,  whether  such  notice  was  substantially  given.  These  questions  can 
only  be  answered  in  the  light  of  a  proper  construction  of  the  act  of  Feb- 
ruary 11th,  1824,  (3  Ch.  Stat.  1308,)  under  which  these  proceedings  were 
had.  From  a  very  early  period  in  our  history,  lands  have  been  made 
assets,  in  the  hands  of  executors  and  administrators,  for  the  payment  of 
debts ;  but  at  no  time  could  they  be  converted  into  money  for  this  purpose 
until  the  personal  property  was  exhausted,  nor  without  the  special  leave 
of  the  proper  court  of  probate.  Prior  to  the  passage  of  the  act  of  1824, 
the  leave  was  obtained  upon  the  petition  of  the  personal  representative, 
showing  a  deficiency  of  personal  assets.  No  parties  defendant  was  re- 
quired to  be  made,  and  the  proceeding  througliout  was  wholly  ex  'parte  and 
strictly  and  technically  in  rem.  That  act  effected  no  further  change  than 
to  require  '  the  person  having  the  next  estate  of  inheritance  of  the  testator 
or  intestate,'  to  be  made  defendant  to  the  petition.  What  elTect  did  this 
have  upon  the  proceeding?  Did  it  make  it  an  adversary  proceeding  in 
personam  in  such  sense  as  to  make  actual  notice  to  the  heir  indispensible 
to  the  jurisdiction  of  the  court?  These  questions  have  not  been  answered 
in  any  of  the  cases  that  have  been  decided,  and  they  are  not  of  easy  solu- 
tion. As  the  interests  of  the  owner  of  the  property  sought  to  be  appropri- 
ated are  involved  in  either  form  of  proceeding,  neither  is  supposed  to  be 
pursued  without  notice  to  him.  Proceedings  in  rem  have  their  own  essen- 
tial and  distinguishing  characteristics.  They  are  usually  brought  to 
enforce  some  liability  which  the  thing  itself  has  incurred — the  law  treating 
the  thing  itself  as  the  debtor  or  delinquent,  or  some  specific  lien  upon  it. 
Tlie  seizure  of  the  thing  and  taking  it  from  the  possession  of  the  owner 
and  into  the  custody  of  the  law,  is  deemed  to  be  implied  notice  to  liim, 
and  while  the  proceedings  were  confined  to  the  pursuit  of  personal  prop- 
erty, was  often  quite  as  ellectual  as  actual  notice  by  the  service  of  a 
summons  wouUl  liave  been.  Other  means  for  giving  notice  were  usually 
prescribed,  but  a  fixilure  to  comply  with  them  only  goes  to  the  regularity 
of  the  proceeding,  and  has  never  been  held  necessary  to  give  the   court 


108  JUDICI-^VL   AND    EXECUTIOX   SALES. 

defendants,  and  asked  for  the  appointment  of  a  guardian  ad 
litem  for  tlio  infant.  A  guardian  ad  litem  was  appointed. 
The  guardian  appeared  in  person  and  the  widow  by  an  attor- 
ney, and  severally  waived  notice  and  filed  answers,  consenting 

jurisdiction.  When  the  property  charged  with  the  liability  is  talceii  into 
(lie  custody  of  the  law  and  brought  witliiu  the  power  of  the  tribunal,  and 
the  judgment  spends  its  whole  force  upon  the  property,— creating  no  per- 
sonal liability  upon  the  owner — it  has  never  been  doubted  that  a  judgment 
of  condemnation  was  effected  to  vest  a  perfect  title  in  the  purchaser,  how- 
ever irregularly  or  erroneously  the  court  may  have  proceeded.  But  when 
the  liability  is  not  upon  the  thing  and  it  is  seized  only  to  secure  and  satisfy 
such  judgment  as  may  be  recovered  against  the  owner,  there  is  much  diffi- 
culty in  seeing  how  the  proceeding  can  be  said  to  be  in  rem,  or  how  a 
judgment  in  personam  can  be  rendered  vmtilthe  party  has  been  personally 
brought  into  court  by  such  notice  as  the  law  may  have  provided.  I  do  not 
doubt  that  the  validity  of  judgments  strictly  in  rem,  may,  by  positive  pro- 
vision of  law,  be  made  to  depend  upon  the  service  of  process  or  other 
notice  upon  the  owner;  but  in  the  absence  of  such  expressed  legislative 
intention,  the  omission  to  serve  the  process  or  give  the  notice,  makes  the 
proceeding  only  erroneous,  but  not  void.  The  thing  itself  being  in  the 
custody  of  the  law  and  within  the  power  of  the  court,  is  subject  to  its 
action  and  effectually  disposed  of  by  its  judgment.  The  proceeding 
authorized  by  the  act  of  1824,  tested  by  its  nature  and  essential  qualities 
would  seem  to  be  clearly  enough  a  proceeding  in  rem.  Upon  the  death  of 
the  owner  the  law  charged  his  debts  as  a  specific  lien  on  all  his  property, 
real  and  personal,  and  held  it  subject  to  their  payment.  The  legal  title  to 
the  real  estate,  it  is  true,  descended  to  the  heir,  but  it  descended  to  him 
subject  to  this  paramount  lieu.  The  executor  or  administraior  was  a  trus. 
tee  alike  for  creditors  and  heir,  and  the  order  of  sale  upon  his  petition 
operated  on  the  estate  and  not  on  the  heir;  and  the  purchaser  by  operation 
of  law,  took  the  paramount  title  of  the  ancestor  and  did  not  claim  through 
or  under  the  heir.  2  How.  338;  11  Serg.  &  Rawle^  430.  The  heir  was 
required  to  be  made  a  party  to  the  proceeding  with  a  view  to  his  having 
notice;  but  it  is  nowhere  intimated  that  a  fiiilure  to  give  the  notice  should 
deprive  the  court  of  jurisdiction  over  the  property.  I  am,  therefore, 
strongly  inclined  to  the  opinion  that  such  an  omission  goes  only  to  the 
regularity  of  the  proceeding  and  not  to  the  jurisdiction  of  the  court;  and 
that  its  final  order  can  only  be  set  aside  for  irregularity  or  reversed  on 
error,  and  cannot  be  treated  as  a  nullity  in  a  collateral  action.  The  pro- 
ceeding was  distinctly  declared  to  be  in  rem  in  the  case  of  llobb  v.  Irwin's 
Lessee,  15  O.  R.  G98 ;  and,  although  Read,  J.,  in  his  dissenting  opinion, 
cliaracterizes  it  as  a  'nickname,'  in  the  case  of  Paine's  Lessee  v.  Moore- 
land,  15  O.  R.  435,  decided  at  the  same  term,  he  not  onlj'  concurred  with 
the  court,  but  delivered  their  opinion  in  holding  proceedings  in  attaelimcnt 
to  be  ill  rem,  in  which  jurisdiction  was  acquired  bj'thc  seizure  of  property, 


SALES    OF    LANDS   IN    TKOBATP:.  109 

to  tlie  sale  of  tlie  property.  An  order  of  sale  was  accordingly 
made  and  tlio  property  was  sold,  deed  executed,  and  by  the 
court  approved.  To  set  up  this  title  and  to  quiet  the  same, 
the  petition  in  chancery  in  Polk  District  Court  was  filed.     To 

and  thiit  a  jiul^i^ment  rendered  without  notice  could  not  be  treated  as  a 
nullit}^  although  such  proceedings  are  founded  upon  no  liability  or  lien, 
resting  upon  the  property  itself;  have  adversary  parties  and  are  consum- 
mated by  a  judgment  ia  personam,  and  the  statute  expressly  declaring 
that  the  suit  shall  be  dismissed  at  the  cost  of  the  plaintiff,  if  the  notice  is 
not  given. 

"  But  it  does  not  become  necessary  to  place  this  case  upon  that  ground, 
as  the  court  are  of  the  opinion  that  notice  was  given  In  such  manner  as 
substantially  complied  with  the  law.  This,  we  think,  has  been  in  effect 
settled  for  more  than  by  the  court  of  last  resort  in  the  state.  The  statute 
provided  for  no  particular  form  of  process  or  mode  of  giving  notice  to  the 
defendants.  The  necessity  of  giving  any  notice  is  only  to  be  inferred 
from  the  ftict  that  the  heirs  are  required  to  be  made  defendants.  Tliis 
omission  in  the  law  had  to  be  supplied  by  a  course  of  practice  in  the  sev- 
eral courts  invested  with  the  jurisdiction,  and  it  is  in  no  way  surprising 
that  entire  uniformity  was  not  secured.  This  fact  demonstrates  the  pro- 
priety of  upholding  any  form  of  notice  that  afforded  a  reasonable  oppor- 
tunity to  the  heirs  to  interpose  their  objection  to  the  sale.  In  the  case  of 
minor  heirs  the  practice  was  general  to  serve  the  process  upon  the  general 
guardian,  or  a  guardian  ad  litem,  or  to  permit  an  appearance  without  by 
cither.  The  correctness  of  this  practice  was  first  drawn  in  question  in 
Ewing'3  Lessee  v.  Higbj',  7  O.  R.  198,  part  1.  In  that  case  the  heirs  were 
minors,  and  two  of  them  were  not  named  in  the  petition;  but  their  guard- 
ians, during  its  pendency,  entered  their  appearance.  The  court  held  them 
bound  by  the  order  of  sale,  and  decided  that  the  proceedings  could  not  be 
collaterally  impeached.  And  in  Ewing  v.  Hollister,  7  O.  R.  138,  part  2d, 
the  same  order  was  affirmed  on  writ  of  certiorari.  In  Robb  v.  Irwin's 
Lessee,  no  process  was  served  or  issued,  but  the  court  appointed  a  guard- 
ian ad  litem  for  the  infant  defendants,  who  appeared  and  answered.  This 
was  held  sufficient  to  give  the  court  jurisdiction  and  the  title  of  the  pur. 
cliaser  was  protected.  In  Snevely  v.  Lowe,  18  O.  R.  3G8,  one  of  the  minor 
lieirs  was  not  made  a  party  to  the  petition,  nor  was  any  process  issued  or 
served.  A  guardian  ad  litem  was  appointed  who  filed  an  answer  for  the 
minor  heirs,  without  specifying  whether  for  those  named  in  the  petition 
alone,  or  for  all  the  minor  heirs  of  the  decedent.  But  the  court  construed 
the  answer  to  include  them  all,  and  held  the  proceeding  effectual  to  trans- 
mit the  title  to  the  purchaser.  Thus  has  the  Supreme  Court  of  the  state, 
from  the  first  to  the  last,  uniformly  decided  that  an  actual  service  of  pro- 
cess upon  the  minor  heii's  was  not  necessary  to  give  the  court  jurisdiction, 
or  even  to  the  regularity  of  the  proceedings.  That  it  was  enough  that  a 
guardian,  either  especially  appointed  for  the  i)urpose,  or  having  the  care 


no  JUDICIAL   AND    EXECUTION    &AIAlS. 

tliis  jietitioii  one  of  the  defendants  answered.  The  others 
made  default.  The  District  Court  decreed  in  favor  of  the 
petitioner,  according  to  tlie  prayer  of  the  petitioner,  and  Maiy 
Norley,  the  defendant  who  had  appeared  and  answered,  appealed. 
On  this  state  of  the  case  the  cause  came  uj)  for  hearing  on  the 
appeal,  and  the  judges  of  the  Supreme  Court  were  divided 
equally  on  the  question  as  to  whether  personal  jurisdiction  of 
the  infant  defendant  was  essential  in  the  probate  v.  urt  to  the 
validity  of  the  decree  and  sale.     Wright,  Justice,  was  of  opi- 

aad  custody  of  the  infants,  person  or  estate,  was  before  the  court  whe.n, 
the  order  was  made.  That  it  was  not  even  indispensable  that  tlie  infant 
should  be  named  as  a  party  in  the  petition ;  and  without  directly  affirming 
that  the  court  could  obtain  jurisdiction,  without  having  him  in  some  way 
before  them,  I  must  think  that  the  case  of  Snevcly  v.  Lowe  can  be  sup- 
ported on  no  other  grounds.  In  my  opinion  it  cannot  be  upon  reasons 
assigned  in  the  opinion.  These  decisions  have  stood  as  the  law  of  the 
state  for  more  than  twenty  years.  During  all  that  time  they  have  con- 
stituted rules  of  property,  and  upon  the  faith  of  them  men  have  invested 
their  money.  If  ever  an  urgent  case  for  the  application  of  the  maxim 
stare  decisis  existed,  this  is  one.  It  is  not  enough  that  we  should  doubt 
their  correctness,  or  that  we  should  decide  differently,  if  the  question  was 
now  for  the  first  time  presented.  It  must  be  made  to  appear  clearly  and 
unquestionably  that  the  rules  of  law  have  been  violated,  and  the  rights  of 
the  parties  disregarded,  before  Ave  could  justify  ourselves  in  questioning 
their  authority.  No  such  case  is  made ;  the  question  was  a  doubtful  one, 
and  has  been  settled,  and  one  plain  duty  is  to  let  it  remain  settled.  In  no 
one  of  these  cases  has  the  court  gone  further  than  the  Supreme  Court  of 
the  United  States  in  Grignon's  Lessee  v.  Astor,  3  How.  335,  as  will  be  seen 
by  a  particular  examination  of  that  case.  I  have  not  referred  to  the  case 
of  Adams  v.  Jeffries,  12  O.  E.  253,  cited  and  relied  upon  by  the  plaintifTs 
counsel,  because  the  order  of  sale  there  involved  was  not  made  under  the 
act  of  1824,  but  under  that  of  1831,  which  specially  provided  the  mode  in 
which  service  should  be  made.  These  principles  seem  to  us  conclusively 
to  settle  the  case  in  hand.  In  this  case  the  heirs  were  all  made  parties  to 
the  petition,  and  service  of  process  was  regularly  upon  the  guardian 
appointed  for  them.  If  the  court  had  power  to  appoint  them  a  guardian, 
it  had  power  to  bring  him  into  court  in  this  manner;  and  if  he  was  in 
court  when  the  order  was  made,  the  jurisdiction  of  the  court  over  him  and 
those  he  represented  cannot  be  questioned.  It  is  true  he  filed  no  answer, 
nor  docs  the  record  show  that  he  accepted  the  appointment;  but  the  want 
of  an  answer  could  not  affect  the  jurisdiction,  and  we  are  bound  to  pre- 
sume the  court  were  advised  of  his  acceptance  of  the  trust  before  proceed- 
ing to  make  the  final  order  in  the  case."  Shelden  r.  Xewton,  3  Ohio 
St.  494. 


SAf.ES    OF   LANDS   IN    rUOBATE.  Ill 

nion,  liowcvor,  tliat  there  was  jurisdiction  of  tlio  person,  and, 
tlicrelbre,  as  well  as  for  account  of  the  division  of  the  court, 
the  decree  appealed  from  was  affirmed,  and  the  sale,  as  a  legal 
result  of  such  division,  was  held  valid. ^ 

§  2G9.  When  jurisdiction  has  fully  attached,  by  petition, 
if  notice  be  not  a  condition  to  the  validity  of  the  proceedings, 
or  by  petition  and  notice,  when  such  notice  is  thus  required  as 
a  condition  to  validity,  then,  after  decree,  all  things  else  as  to 
regularity  of  the  proceedings  and  necessary  to  their  validity,  is 
presumed;  and  after  confirmation  are  no  longer  open  to  col- 
lateral inquiry." 

§  270.  Again,  in  Fiorentliis  v.  Barton,^  the  Supremo 
Court  of  the  United  States,  adhering  to  all  its  former  decisions 
on  this  subject.  Justice  Grier,  delivering  the  opinion,  hold  the 
following  language:  "The  petition  of  the  administrator  set- 
ting forth  that  the  personal  property  of  the  deceased  is  insuffi- 
cient to  pay  such  debts,  and  praying  the  com't  for  an  order  of 
sale,  brought  the  case  fully  within  the  jurisdiction  of  the  court. 
It  became  a  case  of  judicial  cognizance,  and  the  proceedings 
are  judicial.  The  court  has  power  over  the  subject  matter  and 
the  parties.  It  is  true  in  such  proceedings  there  are  no 
adversary  parties,  because  the  proceeding  is  in  the  nature  of  a 
proceeding  in  re?n,  in  which  the  estate  is  represented  by  the 
administrator,  and,  as  in  a  jn'oceeding  in  rem  in  admiralty,  all 
the  world  are  parties." 

§  271,  In  the  same  case  the  court  say  that  in  making  the 
order  of  sale  the  probate  court  are  "presumed  to  have  adjudged 
every  question  necessary  to  justify  such  order  or  decree,  viz.: 
the  death  of  the  owner;  that  the  petitioners  were  his  adminis- 
trators; that  the  jDcrsonal  assets  was  insufficient  to  pay  the 

'  Good  V.  Norley,  27  Iowa,  188. 

^  Morrow  ■;;.  Weed,  4  Iowa,  77,  87 ;  Carter  v.  Waugli,  42  Ala.  452 ;  ]\[j-ers 
V.  McDonald,  47  111.  278;  Frazier  v.  Stcenrod,  7  Iowa,  339;  Hart  v.  Jewett, 
11  Iov,-a,  27G;  Davenport  v.  Smith,  15  Iowa,  213;  Shelden  ?;.  Newton,  3 
Ohio  (N.  S.)  495 ;  Simpson  v.  Hart,  1  Johns.  Ch.  91 ;  Grignon's  Lessee  v. 
Astor,  2  How.  319,  340;  Fox  v.  Iloit,  12  Conn.  491;  Paul  v.  Ilussej,  35 
Maine,  97;  Goudy  v.  Hall,  80  111.  313;  Moore  v.  Neil,  39  III.  25G,  202; 
Comstock  V.  Crawford,  3  Wall.  39G. 

'  2  Wall.  21G. 


112  JUDICLVL   A^'D   ]:XECU'nON    SAL1-:S. 

debts  of  the  deceased;  that  the  private  act  of  assemhly  as  to 
the  manner  of  sale  was  within  the  constitutional  powers  of  the 
Legislature,  and  that  all  the  provisions  of  the  Kv/  as  to  notices, 
which  are  directory  to  the  administrators,  have  been  complied 
with." 

§  272.  The  conrt  moreover  holds  substantially  and  expressly, 
in  the  same  case,  that  such  order,  whether  correct  or  incorrect, 
is  final  and  binding,  nnless  reversed  for  error,  and  is  every- 
where, in  every  court,  binding  in  every  collateral  proceeding; 
and  that  a  purchaser  under  the  same  is  not  bound  to  look 
further  than  the  order  of  the  court,  or  to  "  inquire  into  its 
mistakes."  That  the  court  ordering  the  sale  is  not  bound  to 
enter  all  things  on  its  record;  and  that  "a  diiferent  doctrine" 
would  render  "  titles  under  a  judicial  sale  worthless  and  a 
'  mere  trap  for  the  unwary.'  " 

§  273.  The  court  thus  reafSrm  the  doctrine  and  the  case  of 
Grignoii's  Lessee  v.  Asior,  and  so  they  do  again  in  the  case 
of  Comstock  V.  Crawford ^'^  wherein  the  same  principles  are 
reiterated  and  affirmed,  as  in  Florentine  v.  Barton,  above 
referred  to;  and  the  latter  case  is  cited  and  relied  on  as  in 
point. 

§  271.  But  the  ruling  is  uniform  that  in  chancery  proceed- 
ings, in  a  regular  court  of  chancery,  if  it  appear  affirmatively, 
Avhere  there  are  litigant  parties,  that  there  was  no  service  of 
notice  on  the  defendant,  and  there  be  no  appearance,  a  decree 
and  sale  disposing  of  the  defendant's  rights  are  void.^  In 
Ohio,  it  is  said  that  the  appointment  of  a  guardian  ad  litem 
for  minor  defendants  is  to  enable  them  to  defend  and  is  after 
they  are  in  court,  in  a  regular  chancery  cause,  and  not  to  bring 
tliem  in. 3  Bat  in  the  probate  court,  in  administrations,  the 
property  is  assets  in  tlie  control  of  the  court,  first  for  pay- 
ment of  debts;  remainder  to  the  heirs.  The  latter  are  not 
absohitely  necessary  as  parties,  unless  made  so  by  express 
statute  as  a  condition  to  validity  of  tlie  decree. 

§  275.     And  where  by  statute,  in  proceedings  in  probate  by 

■  3  Wall.  390,  40G. 

'  Moore  X.  Starks,  1  Ohio  St.  3(59. 

'  Ibid. 


S-VLES    OF   LANDS   IN   I'EOBATE,  113 

an  administrator  to  sell  a  decedent's  lands  for  the  payment  of 
debts,  the  heirs  are  required  to  be  made  parties  and  no  parti- 
cular mode  is  prescribed  for  making  them  such,  the  law  is 
complied  with  ])y  the  appointment  of  a  guardian  ad  litern  for 
infant  heirs,  so  tar  as  to  them  J 

§  2TG.  J^otwith standing  the  diversity  of  decisions  and  statu- 
tory regulations  of  the  different  states  upon  this  subject,  we 
think  the  following  conclusions  are  borne  out  as  general  prin- 
ciples by  the  rulings  of  the  courts  in  relation  to  sales  of  lands 
in  probate  for  payment  of  debts:  First — That  all  pro^^erty  of 
a  decedent,  which  was  liable  to  execution  sale  while  he  lived, 
is  subject  to  an  implied  lien  in  favor  of  his  creditors  for  pay- 
ment of  his  debts  at  his  death,  which  lien  is  paramount  to  the 
rights  acquired  by  bequest  or  by  heirshij).  Second — The 
enforcement  of  this  lien  is  ao-ainst  the  title  of  the  ancestor  or 
testator,  as  the  case  may  be,  and  may  be  enforced  in  any  man- 
ner which  the  law-making  j^ower  may  prescribe.  Third — 
That  both  legatees  and  heirs  take  subject  to  this  lien,  and  also 
subject  to  this  paramount  power  of  the  state  to  enforce  the 
lien  in  its  own  way,  before  its  benefits,  conferred  on  the  heirs 
and  permitted  to  be  conferred  by  will  upon  legatees,  shall 
unconditionally  and  absolutely  inure  to  them.  Fourth — That 
in  the  proceedings  to  enforce  such  lien  by  sale  of  lands,  juris- 
diction over  the  particular  case  and  lands  must  attach  by  a 
petition  good  npon  demurrer.  Fifth — That  if,  by  statute,  no 
notice  to  the  heirs  of  legatees  be  required,  then  none  need  be 
given.  The  power  of  the  court  is  over  the  property  and  title 
of  the  ancestor.  Sixth — That  if  by  law  a  notice  is  required, 
and  the  law  in  that  respect  is  directory  only,  then  the  omission 
thereof,  though  error  for  which  a  decree  will  be  reversed,  will 
not  invalidate  a  sale  thereon  if  the  decree  is  permitted  to 
stand;  but  if  it  is  not  apj)arent  whether  notice  was  given  or 
not,  then  in  such  case,  after  decree,  the  law  presumes  the 
notice  to  have  been  given,  and  a  sale  thereon  is  valid.  Seventh — 
That  if  by  law  a  notice  is  required,  and  the  law  provides  that 
unless  it  appear  from  the  records  to  have  been  given,  then  it 

*  Robb  y.  Irwin,  15  Ohio,  G89;  Lewis  t.  Lewis'  Adrur.  15  Ohio,  715. 


114:  JUDICIAL    AND   ILXECUTION    SALES. 

must  SO  appear  from  the  records,  else  the  decree  and  sale  will 
be  void.  Eighth — That  where  notice  is  required,  as  in  either 
of  the  cases  above  stated,  if  it  aj^pear  that  there  was  what 
stands  for  notice,  and  that  it  was  in  the  right  case  as  to  the 
lands  described  and  against  the  right  persons,  if  notice  be 
required  to  the  persons,  that  the  proceedings  and  sale  will  be 
valid  in  that  respect,  although  the  notice  or  service  thereof  be 
irregular  or  defective,  for  the  matter  after  decreu  is  res  judicata 
and  at  most  but  error  of  judgment. 

§  277.  If  notice  of  application  be  by  law  required,  then  the 
petition  must  be  presented  at  the  term  of  court  named,  in  the 
notice;  but  not  necessarily  on  the  first  day  of  the  term.  The 
term  in  law  is  but  one  day  in  that  respect.  If  a  term  inter- 
vene, that  is,  if  the  notice  be  of  one  term,  and  the  petition  be 
not  presented  then,  but  is  presented  at  the  succeeding  term,  it 
is  coram  iion  judice,  and  the  proceeding  will  be  void.^  There 
cannot  be  a  continuance  of  the  application  until  the  petition  is 
filed,  for  until  then  there  is  no  cause  to  continue.  The  pro- 
ceedings, if  a  term  intervenes  without  a  petition  being  filed, 
abate  by  operation  of  law.  Any  subsequent  proceedings  based 
thereon  are  void.- 

§  278.  But  if  the  2:)etitioii  be  presented  at  the  term  desig- 
nated in  the  notice,  and  the  case  be  docketed,  and  continued 
l)y  the  court  until  the  next  term,  and  such  facts  appear  of 
record,  then  the  action  of  the  court  at  such  subsequent  term 
will  be  of  like  validity  as  if  had  at  the  time  the  petition  is 
])resented.3     By  failure  to  file    the   application   at   the   time 

"  Schiicll  V.  Chicago,  38  III.  382;  Morris  v.  Hoglo,  37  III.  150;  Turncy  r. 
Turnoy,  24  111.  625 ;  Goudy  v.  Hull,  10  111.  31G. 

""  Scfmell  V.  Chicago,  38  111.  394. 

^Schncll  V.  Chicago,  88  111.  382.  In  this  case  the  court  say:  "The  ques- 
tion then  is,  was  suck  presentation  of  the  petition  at  the  September  term, 
Avhcn  notice  liad  been  given,  it  -would  be  presented  at  the  August  term,  a 
compliance  with  the  statute,  and  if  not  such  compliance,  does  it  not 
render  the  proceedings  void  ?  This  question  has  already  been  determined 
by  this  court.  The  case  of  Turncy  and  others  v.  Turncy's  Admr.  24  111.. 
G25,  is  in  point.  In  that  case  notices  was  given  by  the  administratrix; 
that  she  would  apply  by  petition  to  the  circuit  of  Jo  Daviess  county,  at  the 
July  term,  1847,  for  an  order  to  sell  the  real  estate  of  the  intestate.  The 
petition  was  not  fded  until  the  following  September  term,  and  this  court 


SALES    OF   LAXDS   IN    I'KOB.VTi:.  115 

dcsigiiatod  in  the  notice  the  proceedings  abate,  and  to  gi\-c  tlic 
court  proper  jurisdiction,  where  notice  is  required,  anew  notice 
is  necessary.! 

§  279.  As  a  pre-requisite  to  making  the  order  of  sale,  tlie 
claims  of  the  creditors  should  first  be  adjudicated  so  as  to 
exliibit  or  show  what  is'chargeable  against  the  lands.-  And  in 
some  of  the  States  the  petition  is  required  to  state  the  names 
of  the  heirs,  or  else  the  order  or  decree  will  be  ^-oid.3  Unless 
the  proceedings  be  entitled  against  the  unknoioii  heirs,  under 
tlie  statute,  and  it  be  therein  stated  that  the  heirs  are  unkno^vn.■t 

§  280.  It  is  held  in  New  Hampshire  that  if  the  sale  be  void, 
a  new  order  and  sale  inay  be  made,  although  the  proceeds  of 
the  first  sale  went  to  the  creditors.  ^ 

§  281.  In  Mississippi  it  must  affinnatively  appear  in  the 
proceedings  that  the  statntory  requirements  are  conformed  to, 
else  the  sale  will  be  void.^ 

§  282.  In  Texas  the  application  is  to  be  made  bj^  a  creditor, 
heir,  or  legatee.  An  order  of  sale  made  on  the  application  of 
the  administrator  alone,  is  invalid  to  confer  title  by  sale  under 
it,  and  if  a  sale  be  made  thereon,  it  will  be  set  aside  on  appli- 
cation for  that  purpose,  although  a  lapse  of  more  than  five 
years  time  intervene  between  the  time  of  such  application  and 
tlie  day  of  sale.'' 

§  283.  The  court  has  power  to  order  the  sale  to  be  made  on 
a  credit  and  may  prescribe  the  terms  thereof.  ^ 

§  284.     The  order  of   sale  must  bo  confined  to  the  lands 

held  that  the  failure  to  file  the  petition  at  the  time  specified  in  the  notice 
and  petition,  and  to  have  the  cause  docketed  at  the  July  term,  abated  the 
proceeding,  and  before  any  other  steps  could  be  taken  the  heirs  and 
parties  in  interest  should  have  been  again  brought  in  to  court  by  another 
notice,  as  if  none  had  been  previously  given. 

'Turney  v.  Turncy,  24  111.  G25;  Schncll  v.  Cliicago,  38  111.  C82. 

=  Cralle  v.  Mccm,  8  Gratt.  49G. 

=  Tally  v.  Starke,  G  Gratt.  339 ;  Guy  v.  Pierson,  21  Ind.  18. 

*  Guy  «.  Pierson,  21  Ind.  18. 

"■  Wilson  ®.  Bergin,  8  Foster,  (K  II.)  90. 

"  Getstrop  ».  Moore,  2G  Miss.  20G. 

'  Miller  v.  Miller  10,  Texas,  319. 

8  Reynolds  t.  Wilson,  15  111.  304. 


lie  JUDICLVL   AND   EXECUTION    SALES. 

described  in  the  petition  as  those  wliicli  it  is  desired  to  sell.  ^ 
The  order  may  be  that  the  sale  be  public,  or  that  it  be  private, 
at  the  discretion  of  the  court.  ^  Ko  more  land  should  be  sold 
than  is  required  to  pay  the  debts,  unless  the  sale  of  part  only 
will  injure  the  residue.^  But  selling  a  larger  quantity  will  not 
always  invalidate  the  salc^ 

§  285.  In  Illinois  the  court  must  have  jurisdiction  of  the 
persons  of  the  heirs  in  proceedings  by  an  administrator  to  sell 
the  land  of  a  decedent  to  pay  debts,  and  a  decree  made  on  the 
mere  answer  of  the  guardian  ad  litem,  where  no  such  jurisdic- 
tion had  attached,  is  void,  and  so  is  a  sale  made  thereon.  ^ 

§  2SG.  But  if  the  court  obtains  jurisdiction  of  the  case,  and 
the  subject  matter  and  parties  thereof,  where  jurisdiction  of  the 
persons  is  required,  it  matters  not  that  errors  or  irregularities 
may  intervene  in  the  course  of  the  proceedings.  They  will 
neither  be  void,  nor  will  the  court,  for  such  irregularity  or 
errors,  without  other  cause,  set  the  sale  aside.  <»  The  sale,  when 
confirmed,  will  be  valid,  irrespective  of  mere  irregularities  or 
ciTors  in  the  proceedings.  So,  too,  in  Arkansas;  mere  irregu- 
larities will  nofe  vitiate  the  j^roceediugs  or  the  sales.''  When 
the  sale  is  confirmed  by  the  court,  all  anterior  questions  arising 
collaterally,  are  precluded.  But,  until  confirmation,  the  sale  is 
incomplete  and  confers  no  rights.  ^ 

§  2ST.  The  purchaser  at  an  administrator's  sale  of  lands  in 
probate  is  not  bound  to  look  behind  the  decree  more  than  to 
see  if  there  was  jurisdiction  in  the  court  making  it  of  the 
subject  matter  and  of  the  j^arties  in  interest. 

§  288.  And  though  the  sale  be  for  the  payment  of  debts 
some  of  vrhicli  were  fraudulent  and  the  administrator  may 

'  Williams  v.  Childress,  25  Miss.  78. 

^  Ex  parte  Couzins,  5  Grcenl.  240. 

3  Black  V.  Meek,  1  Ind.  810;  Merrill  v.  Harris,  G  Foster,  (N.  H.)  142. 

"  Runyon  v.  Rubber  Co.  4  Zabr.  469. 

'Clark  V.  Thompson,  47  111.  2.'5;  Herdraan  v.  Short,  18  111.  59;  Johnson 
T.  Johnson,  30  111.  215. 

Carter  v.  Wangh,  42  Ala.  452;  Madden  v.  Cooper,  47  111.  802. 

''  Thorn  v.  Ingram,  25  Ark.  52. 

8  Mason  «.♦  Osgood,  G4  N.  C.  4G7;  Rawlings  v.  Bailey,  15  111.  178;  Ayrcs 
V.  Baumgartucr,  15  111.  44-1,  44G;  Young  v.  Kcogh,  11  111.  G42. 


SALES   OF   LANDS    IN    IT.OBATE,  117 

have  been  i^urty  to  tlicir  fraudulent  admission,  yet  such  circum- 
stance will  not  avoid  the  sale  in  collateral  proceedings  when  a 
portion  of  the  claims  were  just;  at  most  it  would  only  be  void- 
able after  confirmation,  in  a  direct  proceeding  in  chancery  to 
set  it  aside.  ]^or  will  it  alter  the  case  if  the  purchaser  have 
notice  of  or  participate  in  the  fraud.  After  confirmation  the 
remedy  is,  in  eithec  case,  by  original  bill.  The  sale  cannot  be 
attacked  successfully  in  a  collateral  proceeding.'^ 

§  289.  It  is  well  settled  in  Indiana,  first  upon  general  prin- 
cij^les,  and  subseqiiently  under  the  statutes  of  that  State,  that 
a  sale  of  the  realty,  by  an  administrator,  without  notice  to  the 
licir,  though  ordered  and  confirmed  by  the  court,  is  absolutely 
void.-  This  is  not  only  upon  the  general  principle  that  to 
give  validity  to  the  proceedings  the  court  must  have  jurisdic- 
tion of  the  parties  by  service  or  appearance,  as  well  as  of  the 
subject  matter, 3  as  originally  liolden  in  that  State  previous  to 
the  enactment  of  1843.  But,  as  ruled  subsequently  under  said 
statute  which  declares  that  the  petition  must  state  the  names 
and  age  of  the  heirs  or  others  in  interest,  if  known,  and  if 
unloiown,  that  such  want  of  knowledge  should  be  stated.  That 
no  order  of  sale  shall  be  made  without  notice  to  such  heirs  or 
others  in  interest;  personal  notice  if  residents  of  the  State,  and 
by  publication  if  non-residents.''- 

§  290.  But  every  reasonable  intendment  or  presumption  is 
made  in  favor  of  the  proceedings  where  the  record  comes  col- 
laterally in  question  and  there  is  no  disclosure  whatever  in  the 
same  negativing  jurisdiction  of  the  person.  ^ 

§  291.  And  where  the  petition  for  leave  to  sell  lands  of 
minor  heirs  was  filed,  and  a  guardian  ad  litem  for  the  heirs 
appointed  all  at  the  same  time,  without  actual  notice  to  the 

'  Myers  «.  McDouga],  47  III.  278. 

5  Hawkins  «.  Hawkins,  28  Ind.  70,  71 ;  Babbitt  v.  Doe,  4  Ind.  355 ;  Doe  v. 
Anderson,  5  Ind.  33 ;  Doe  v.  Bowen,  8  Ind.  197 ;  Gerrard  v.  Johnson,  12 
Ind.  636;  Wart  r>.  Finley,  8  Blackf.  335-,  Bliss  «.  Wilson,  4  Blackf.  169, 

«  Hawkins  ©.  Hawkins,  28  Ind.  60,  71. 

*  Hawkins  v.  Hawkins,  28  Ind.  70. 

^  Hawkins  t.  Hawkins,  28  Ind.  00,  71 ;  Homer  v.  Doe,  1  Ind.  130;  Doc  «. 
Ilarvej',  5  Blackf.  487. 


lis  JUDICIAL   AXD   EXECUTION    SALES. 

heirs,  but  in  wliicli  proceeding  the  guardian  ad  litem  appeared 
and  answered  admitting  the  truth  of  the  petition,  and  the 
court  ordered  a  sale  which  was  made  and  confirmed,  it  was 
holden  that  though  tlie  order  of  sale  was  erroneous,  it  was  not 
a  nullity,  and  that  the  sale  and  purchase  under  it  were  valid.  ^ 

§  292.  Where,  however,  in  a  like  case,  under  the  act  of  1843, 
the  general  guardian  of  the  minor  heirs  appeared  and  filed  an 
answer  stating  that  he  neither  admitted  nor  denied  the  mattei*s 
charged  in  the  petition,  and  waived  service  of  notice  on  his 
wards,  the  court  decreed  an  order  of  sale  npon  such  petition 
and  answer,  and  the  sale  was  made,  it  was  held  that  the  sale 
and  the  order  of  sale  were  nullities  when  the  same  came  in 
cjuestion  in  a  collateral  proceeding." 

§  293.  The  infencj  of  the  heirs  does  not  excuse  the  service 
of  process  or  notice  on  them,  where  the  statute  makes  notice 
necessary  to  the  validity  of  the  proceeding.  ^  Such  service 
being  omitted,  seems  not  to  render  the  order  void,  where  a 
guardian  ad  litem  is  appointed  and  appears  for  the  minors; 
still,  as  w^e  have  seen,  its  omission  is  error.* 

§  294.  Where  a  creditor  of  a  deceased  debtor  would  other- 
wise have  a  right  to  an  order  in  probate  for  sale  of  the  realty 
to  pay  his  debt,  but  has  been  prevented  by  destruction  of  tlie 
records  by  fire  or  by  other  circumstances  not  arising  from  any 
fault  of  his  own,  from  enforcing  his  claim  by  administrator's 
sale  of  the  realty,  and  the  estate  of  the  decedent  still  remains 
unsettled  without  any  evidences  or  basis  in  the  probate  court 
of  assets  or  data  from  which  to  procure  a  settlement,  decree 
of  sale  or  payment,  such  creditor  may,  upon  the  general  prin- 
ciples of  equity  jurisdiction,  obtain  relief  in  the  ordinary  court 
of  chancery  by  bill  in  equity,  and  a  decree  for  the  sale  of  the 
real  estate  to  pay  his  debt  in  a  direct  proceeding  against  the 
lieirs  for  discovery  of  assets  and  for  relief;  and  in  such  case 

'  Tliompson  x.  Doc,  8  Blackf.  33«. 

'  Doe  v.  Anderson,  5  Ind.  33. 

5  Hawkins  v.  Hawkins,  28  Ind.  G6,  72 ;  Hougli  v.  Cauby,  8  Blackf.  301 ; 
Peoples  V.  Stanley,  G  Ind.  410;  Martin  v.  Starr,  7  Ind.  224;  Pugh  «.  Pugh, 
0  Ind.  132;  Abdill  -y.  Abdill,  9  Ind.  287. 

4  Thompson  v.  Doe,  8  Blackf.  33G. 


SALT'S   OK   LANDS   IN    riiOBATE.  119 

eio-lit  years  is  not  deemed  an  unreasonable  time  in  vrliicli  to 
commence  sncli  proceedinoj.^ 

§  295.  But  it  is  also  held  in  Xew  York,  that  although  sufB- 
cieut  time  has  elapsed  between  the  grant  of  administration  and 
the  time  of  the  application  to  the  surrogute's  court  for  the  order 
of  sale  to  cause  the  court  to  reject  the  application,  that  never- 
theless if  the  court  grant  the  order,  it  is  but  error,  and  can  be 
corrected  only  by  appeal.  Tliat  until  reversed  the  proceeding 
will  be  valid,  and  being  so,  of  course  a  sale,  in  accordance  with 
it,  and  in  other  respects  sufficient,  would  also  be  valid.  The 
erroneous  judgment  of  the  surrogate,  given  in  a  proceeding 
wherein  jurisdiction  has  attached,  will  not  be  void,  and  cannot 
be'  treated  as  such  in  a  collateral  proceeding.  The  court  hav- 
in<>  obtained  iurisdiction  its  order  is  not  a  nullitv." 

V.     WrrniN  avhat   Time  the   Sale  is  to  ee   Made  and  Pee- 

FECTED   BY    DeED. 

§  29G.  The  general  ruling  is,  that  where  the  life,  or  validity 
of  the  license  to  sell  is  limited  to  one  year,  or  other  time,  the 
sale  must  be  made  and  perfected  within  the  limited  time.^  In 
Michigan,  however,  a  sale  was  made  on  the  last  day  limited  by 
law,  and  the  deed  was  executed  eighteen  days  thereafter,  and 
the  court  held  the  same  to  be  valid. '^ 

§  297.  Though  there  be  no  limit  of  time  by  law  in  which 
to  sell  a  decedent's  lands  to  pay  debts,  yet  the  power  may 

^  Clark  V.  Iloglc,  52  111.  427.  And  one  creditor  alone  may  file  such  bill. 
lb.  and  1  Story,  Eq.  Jur.  003,  Sec.  54G. 

*  Jackson  v.  Robinson,  4  Wend.  43G.  But  this  decision  was  made 
previous  to  the  passage  of  the  revised  statutes  limiting  the  time  to  three 
years.  Tlie  statutory  limit  is  arbitrary  and  cuts  off  the  power  of  the 
surrogate  at  the  end  of  the  time  limited.  If  there  be  a  remedy  afterward, 
it  must  be  under  suitable  circumstances  in  a  court  of  general  chancery 
jurisdiction. 

^  Marr  v.  Boothy,  19  Maine,  150;  Mason  v.  Haiu,  36  Maine,  573;  Macy 
U.Raymond,  9  Pick,  385;  Welraan  ij.  Lawrence,  15  Mass.  326,  329 ;  Chad- 
bourne  «.  Ratcliff,  30  Maine,  354,  359;  Dubois  v.  Dubois,  4  McLean, 
480,  489. 

*  Howard  v.  Moore,  2  Mich.  226. 


120  JUDICIAL   AKD   EXECUTION   SALES. 

expire  by  analogy  to  tlie  statute  of  limitations.  ^  But  where 
circumstances  require  it,  an  ordinary  court  of  chancery,  having 
jurisdiction  of  the  subject  matter,  Avill  not  be  restricted  by  the 
time  allowed  in  probate. ^ 

§  298.  In  the  case  of  Clarh  v.  Ilogle,^  the  ordinary  court 
of  chancery  jurisdiction,  assumed  jurisdiction  and  aiforded 
relief  by  decree  and  sale  of  real  estate  of  a  decedent  at  the  suit 
of  creditors  who  had  been  prevented  by  accident  and  burning 
of  the  j)robate  records  from  obtaining  satisfaction  of  his  debt 
by  proceedings  and  sale  in  probate  in  the  ordinary  manner. 
In  that  case  the  proceedings  was  a  direct  one  by  bill  in  equity 
against  the  heirs  of  the  decedent;  and  though  the  term  of 
eight  years  had.  intervened,  chancery  did  not  consider  that  a 
sufficient  time  to  preclude  the  creditor  under  the  circumstances 
of  the  case.  In  such  cases,  equity  courts  have  jurisdiction 
upon  the  general  principles  of  affording  relief  against  acci- 
dents. 

YI.       I^OT   AFfER    KePEAL   OF   THE    LaW    OR    ABOLITION     OF    THE 

Court  Ailow^ixg  the  Order. 

§  299.  The  power  to  make  or  carry  out  the  sale,  or  to  enforce 
the  decree,  ceases  with  the  abolition  of  the  court  in  wliich  the 
decree  is  made  in  case  such  court  be  abolished  by  law  between 
the  time  of  making  the  decree  and  the  completion  of  the  sale. 
In  such  case  no  authority  remains  to  j)erfect  tlie  same,  or  to 
enforce  the  decree.* 

§  300.  And  so  a  sale  under  an  order  or  decree  made  after 
repeal  of  the  law  under  which  the  proceedings  and  decree  were 
had.  Tlie  repeal  of  the  law,  if  there  be  no  saving  clause,  puts 
an  end  to  the  authority  of  the  decree,  and  the  sale  is  void.^ 

§  301.  It  follows  from  these  principles  that  if  the  decree 
itself  be  made  under  a  supposed   law,  but  which  was  then 

Dubois  V.  McLean,  4  McLean,  48G;  la  re  Godrey  4  Marsh,  308. 
2  Clark  V.  Hosle,  52  111.  427. 
s  Clark  V.  Hogle,  52  111.  427. 
^  aSIcLau.i^hliu  v.  Janney,  6  Gratt.  609,  G14. 

'  Perry  v.  Clarkson,  IG  Ohio,  571 ;  Campan  v.  Gillctt,  1  Man.  (Mich.)  41C; 
Bank  of  Hamilton  v.  Dudley,  2  Pet.  494. 


SALES    OF   LANDS    IN    PliOBAlT:.  121 

already  repealed  and  had  ceased  to  exist,  both  the  decree  and 
any  sale  made  thereon  are  void.^ 

§  302.  In  the  case  of  McLaiighlm  v.  Janney,^  the  court 
hold  the  following  langnage:  "It  wonld  be  a  solecism,  in  law, 
to  assert  that  persons  appointed  by  a  court  to  act  as  its  commis- 
sioners can  exercise  that  authority  as  commissioners  of  that 
court  after  the  court  itself  has  been  abolished,  or  has  ceased  to 
exist." 

§  303.  And  in  the  Bank  of  Hamilton  v.  Dudley ^^  that 
very  learned  Justice,  ]\LiEsnALL,  says,  in  reference  to  the  effects 
of  a  repeal :  "  If  the  law  which  authorized  the  court  to  make 
the  order  be  repealed,  the  power  to  sell  can  never  come  into 
existence." 

§  304.  Thus  it  is  well  settled  that  abolishing  the  court,  or 
repealing  the  law  before  enforcement  of  the  order  or  decree, 
destroys  the  power  to  execute  it,  if  there  be  no  saving  clause, 
and  terminates  the  j^i'oceedings. 

VII.     The  Oath. 

§  305.  AVhen,  by  law,  an  oath  is  required  to  be  taken  by 
the  administrator  or  executor,  in  reference  to  selling,  it  should 
be  taken  before  fixing  the  time  and  place  and  giving  notice  of 
sale,  and  not  merely  before  the  act  of  selling,  or  the  execution 
of  the  deed.  The  taking  of  the  oath  in  such  cases  should  be 
the  first  step  taken  in  proceeding  to  sell.'* 

§  30G.  If  the  law  requiring  the  oath  is  only  directory,  and 
it  does  not  appear  from  the  proceeding  whether  it  was  taken  or 
not,  then  the  presumption  of  law  is  that  it  M-as  taken,  if  juris- 
diction had  attached;  and  the  question  will  not  be  open  to 
collateral  incjuiry.s  And  so,  too,  though  the  validity  of  the 
proceedings  are,  under  the  statute,  dependent  on  the  taking  of 

'  Ludlow  «.  Wade,  5  Ham,  494. 

'  G  Gratt.  609,  G14. 

3  2  Pet.  492. 

«  Parker  'o.  Nichols,  7  Pick.  Ill,  IIG;  Cooper  ^^  Sunderland.  3  Iowa,  114; 
Campbell  t.  Knight,  2G  Maine,  244;  Thornton  ®.  Mulquinnc,  12  Iowa,  549, 
554;  Little  v.  Sennett,  7  Iowa,  324;  Morrow  «.  Weed,  4  Iowa,  77. 

'  Voorhees  v.  U.  S.  Bank,  10  Pet.  449,  47G,  477. 


lfJ3  JUDICIAL   AInD   execution   SALES. 

tlic  Ocatli,  if  it  do  not  appear  wlietlier  it  was  taken  or  not,  and 
jurisdiction  Lad  attaelied,  tlien  the  presumption  is  tliat  the 
oath  was  properly  taken.  ^ 

§  307.  But  where,  by  statute  or  by  the  settled  rulings  of 
the  court,  it  is  requisite  to  the  validity  of  the  sale,  that  from 
the  records  and  proceedings  it  shall  appear  that  the  requisite 
oath  has  been  taken,  then  if  from  the  records  and  proceedings 
it  docs  not  appear  to  have  been  taken,  there  is  in  such  case  no 
intendment  of  law  to  lielp  out  the  proceedings,  but  the  sale 
made  therein  is  void  and  will  be  so  treated  when  collaterally 
drawn  in  question,-  excej^t  such  validity  as  may  be  given  to  it 
by  long  and  uninterrupted  j^ossession  and  by  lapse  of  time. 

YIII.     Sales  Merely  Irregulak,  oe  in  Irregular  Proceed- 
ings, NOT  YoiD. 

§  SOS.  A  mere  irregularity  in  the  proceedings,  or  in  the 
manner  of  selling  or  conducting  the  sale,  if  there  be  no  want 
of  jurisdiction  in  the  court,  will  not  avoid  a  sale  of  lands  in 
probate  by  an  executor  or  administrator  for  j)ayinent  of  a 
decedent's  debts.  ^ 

§  309.  ITor  can  the  validity  of  the  sale,  in  a  collateral  pro- 
ceeding, be  made  to  depend  upon  the  regularity  of  the  adminis- 
trator's appointment,  if  the  appointment  be  mere  error  as  in 
a  wrong  county  under  a  law  that  is  only  directory.^  But 
otherwise  if  the  law  inhibit  such  appointment.^ 

§  310.  If  the  sale  be  reported  and  approved  by  the  court, 
then  it  may  not  be  impeached  collaterally  for  any  irregularity 

'  Voorliees  v.  U.  S.  Bank,  10  Pet.  449,  470,  477. 

^  Cooper  V.  Sunderland,  3  Iowa,  114,  137,  138;  Thornton  v.  Mulquiune 
12  Iowa,  549,  554;  Babbitt  v.  Doe,  4  Ind.  355. 

3  Van  Syckle  v.  Richardson,  13  III.  171;  Freeland  v.  Dazey,  25  111.  294; 
Madden  v.  Cooper,  47  111.  359,  3G2;  Iverson  v.  Loberg,  26  111.  179;  Matilda 
t).  Lockridge,  53  111.  503;  Ewing  ■?;.  Higby,  G  Ohio,  472;  Grignon's  Lessee 
V.  Astor,  2  How.  319;  Comstock  v.  Crawford,  3  Wall.  39G;  George  v.  Wat- 
son, 19  Texas,  354;  Succession  of  Guerney,  14  La.  An.  G32;  Gregory  v. 
McPherson,  13  Cal.  174,  5G2. 

*  Wright  «.  Walbaum,  39  111.  554;  Schncll  v.  Chicago,  38  111.  382;  Cook 
r.  Fry,  2  Mich.  500. 

'  Culls  V.  Iloskins,  9  Mass.  543. 


SALES   OF    LANDS    IX   ITvOBATE.  123 

or  insiifRcicney  in  tlie  notice  given  of  the  sale.  If  tlie  probate 
court  err  in  atljudicating  the  notice  to  be  a  sufficient  one,  when 
in  truth  it  is  not  in  legal  compliance  with  the  law,  this  error 
is  to  be  corrected  on  appeal  and  cannot  be  taken  advantage  of 
in  a  collateral  proceedings  involving  title  under  the  sale.^  In 
Morrow  v.  Weed,^  the  Supreme  Court  of  Iowa,  Woodwajrd, 
Justice,  say:  "  If  this  were  admissible,  then  every  question 
relating  to  the  sufficiency  of  a  notice  and  of  its  service,  too, 
in  any  of  the  courts,  could  be  bought  up  and  reviewed  in  the 
same  manner." 

IX.     CoxFntMATiON — The  Deed — Its  ArrKovAL. 

g  311.  In  some  states  the  practice  is  to  confirm  the  sale  by 
order  in  probate  of  record,  and  therein  direct  the  execution  of 
the  deed.=^  In  others  the  usual  course  is  for  the  administrator 
or  executor  to  execute  the  deed  and  report  the  saine  with  the 
sale  for  approval;  and,  thereupon,  if  acceptable  to  the  court,  an 
order  approving  the  deed  is  made  and  is  endorsed  upon  the 
deed."^ 

§  312.  If  the  administrator  or  executor  die  before  carrying 
the  order  into  eftect  by  a  complete  sale,  his  successor  should 
complete  the  sale  and  make  the  deed,  or  else  apply  to  the  court 
lor  orders  in  that  resj)ect.  ^ 

'  Morrow  v.  Weed,  4  Iowa,  77 ;  Little  v.  Sennctt,  7  Iowa,  024,  o3ij. 

"  4  Iowa,  91. 

MVclls  V.  Miller,  22  Texas,  302;  Dowling  v.  Duke,  20  Texas,  181;  Brad- 
bury V.  Reed,  23  Texas,  258;  Smith  v.  Chew,  35  Miss.  153;  Hallick  v.  Guy, 
9  Cal.  181,  195;  Yerby  v.  Hill,  16  Texas,  377. 

*  Wade  V.  Carpenter,  4  Iowa,  3G1,  3GG ;  Morrow  v.  Weed,  4  Iowa,  77. 

5  Baker  v.  Bradsby,  23  111.  G32.  This  case  was  in  reference  to  a  sale  of 
slaves,  but  the  principle  applies  with  still  greater  force  as  to  land. 


CHAPTEE   YII. 

GUARDIAN'S   SALES,   AND   SALES   IN  PROCEEDINGS  FOR 
PARTITION. 

I.    Guardian's  Sales. 
II.    Sales  in  Proceedings  for  Partition. 

I.     Gua-rdian's  Sales. 

§  313.  In  England,  tlie  king  being  sovereign,  is  by  tlie 
common  law  regarded  as  tbe  universal  guardian  of  all  infants 
or  minors.^  Hence  tliis  authority  was  an  attribute  of  the 
judiciary,  when,  as  was  the  case  originally,  the  king  held  the 
courts  himself  in  person. 

§  314.  It  followed  that  when  the  judicial  power  was  trans- 
mitted from  the  king  in  person  to  the  judges  by  him  appointed 
to  hold  tlie  courts  in  his  stead,  that  this  attribute  of  guardian- 
ship then  devolved  upon  the  courts,  whence  it  eventually  cen- 
tered in  the  chancellor,  whose  court  is  always  oj^en.  Wliether 
by  usurpation  as  by  some  jurists  contended,"  or  by  legitimate 
means,  as  alleged  by  others,^  is  no  longer  material.  Suffice  it 
to  say  it  was  there  firmly  lodged,  and  the  chancery  court  came 
to  be  regarded  as  guardian  of  the  interests  of  all  minors.^ 

§  315.  This  authority  as  to  administrative  matters,  came  to 
be  conferred  on  others  selected  and  appointed  by  the  chancellor, 
from  time  to  time,  for  infants  generally,  as  necessity  should 
require,  and.  as  ultimately  regulated  by  act  of  parliament, 
chancery,  however,  retaining  and  maintaining  its  supervisory 
power  over  both  guardians  so  appointed  and  over  their  wards 
and.  their  interests  both  moral  and  pecuniary.     This,  too,  even 

*  Bac.  Abt.  Vol.  4;  Title,  Guardian,  C. 
2  Co.  Lit.  128;  note  IG. 

*  Fonblanque,  Eq.  228,  n.  a. 

*  Bac.  Abt.  Vol.  4;  Title  Guardian,  C. 

(124) 


guakdian's  sale.  125 

to  tlic  extent  of  superceding  tlie  autliorltj  of  the  parent  for 
the  interest  of  the  child.  ^ 

§  310.  Now,  such  being  the  powers  of  tlie  king,  the  parlia- 
ment, and  the  courts  under  the  crown,  not  only  as  to  England, 
but  as  to  the  colonies  also,  they  legally  devolved  uj)on  the  several 
sovereign  States,  legislatures,  and  courts  of  the  several  repub- 
lican commonwealths  established  by  the  American  revolution, 
and  as  a  part  of  their  common  inheritance,  and  also  upon  the 
new  States,  their  legislatures,  and  their  courts  subsequently 
established. 

§  317.  Although  in  the  American  States  the  administrative 
powers  and  duties  as  to  appointment  of  guardians,  their  ordi- 
nary supervision  and  accountability,  and  the  administration 
of  the  ward's  interests  and.  care  of  his  person  is  conferred  and 
regulated  by  statutes  conforming  to  the  local  policies  of  the 
several  States,  yet  the  uncircumscribed  overruling  supervisory 
jurisdiction  of  the  chancellor  still  exists.^  This  power  is  to 
be  exercised  upon  the  great  princii)les  of  equity  whenever 
necessity  calls  for  it  for  the  protection  of  the  infant  from  all 
abuse  of  his  rights  in  property  and  in  person  when  wielded  by 
the  chancellor  as  a  judge  of  the  court  of  general  chancery 
jurisdiction  and  by  the  probate  courts  of  inferior  jurisdicton  to 
tlie  extent  and  in  the  manner  specified  and  regulated  by  the 
legislative  enactments  of  the  several  States,  in  each  State, 
according  to  the  lex  loci  thereof. 

§  318.  In  some  of  the  States  it  is  held  that  a  court  of  general 
chancery  jurisdiction  has  full  power  to  decree  a  sale  of  a  minor's 
lands  when  deemed  best  for  his  interests.  ^  AVhilst  in  some 
others  it  is  said  that  though  chancery  may  exercise  such  a 
power  over  the  estates  of  minors  that  it  will  not  be  done  to 
the  disj)0sal  of  a  future  interest  except  under  extraordinary 

•Bac.  Abt.;  Title  Guardian,  C.  Whitfield  v.  Ilale,  12  Ves.  492.  Ex, 
-parte  Warner,  4  Brown,  Cli.  101. 

•^  2  Story,  Eq.  Jur.  Sec.  1389,  1840,  1341,  13oG;  Ex  parte  Crumb.  2  Johns. 
Ch.  439;  Matter  of  Andrews,  1  Johns.  Cli.  99;  Allen  v.  Allen,  2  Litt.  97; 
Aymar  v.  Rofl',  3  Johns.  Ch.  49. 

'  Williams  v.  Harrington,  11  Ind.  GIG ;  Matter  of  Salisbmy,  3  Johns.  Ch. 
047;  Hugcr  v.  linger,  3  Des.  18;  Stapleton  v.  Longstaff,  3  Des.  22;  Will- 
iams v.  Harrington,  11  Ircd.  GIG;  Ex  jmrte  Jcwett,  IG  Ala.  409. 


12G  JUDICIAL   AND   EXECUTION   SALES. 

circumstances,  and  not  in  any  case  for  the  mere  pur])0£C  of 
increasing  tlie  present  interest  of  the  adult  owner. ^ 

§  310.  Again,  in  others,  the  converse  of  this  principle  is 
asserted,  and  it  is  held  that  the  general  powers  of  chancery  do 
not  extend  to  the  decreeing  a  sale  of  an  infant's  real  estate  for 
the  mere  purpose  of  bettering  his  pecuniary  condition  or  gen- 
eral interests.2  Formerly  the  ruling  in  Virginia,  under  the 
Rct  of  February  IS,  1853,  was  the  other  way.^ 

§  320.  But  whatever  the  general  jjowers  of  the  chancellor 
may  be,  those  of  the  courts  of  probate  are  such  only  as  arc 
conferred  by  statute,*  and  must  be  exercised  in  conformity  to, 
and  only  for  the  causes  allowed  by  the  statutes  of  the  respect- 
ive States. 

§  321.  Yet,  if  jurisdiction  shall  have  attached  such  con- 
formity vrill  be  inferred,  in  most  cases,  after  decree  and  sale; 
for  although  they  are  courts  of  limited  powers,  yet  their  juris- 
diction is  general  to  the  extent  conferred  over  the  ]3articular 
subjects  by  statute.'' 

§  322.  In  some  cases  it  is  held  that  the  proceedings  by 
guardian  in  probate  for  a  sale  of  a  ward's  lands  are  adversary, 
and  that  there  must  be  notice,  or  Avhat  answers  in  lieu 
thereof.''  In  others  it  is  adjudged  that  they  are  in  rem;  that 
the  action  of  the  court  is  on  the  property  itself,  the  proceed- 
ings not  adversary,  and  that  no  notice,  or  what  may  answer 
instead  thereof,  is  required.'' 

§  323.     But  in  the  latter  class  of  cases,  the  court  of  probate 

'  Matter  of  Jones,  2  Barb.  Ch.  22. 

^Falkner  «.  Davis,  ISGratt.  Gol;  Rogers  i\  Dill,  G  Hill,  415;  Baker  t\ 
Lorillard,  4  Comst.  257;  Williams'  Case,  3  Bland  Ch.  18G;  Picrso  v.  Trigg, 
10  Leigh,  40G. 

2  Faikner  v.  Davis,  18  Gratt.  G51. 

*  Wade  B.  Carpenter,  4  Iowa,  3G1;  Gilmorc  v.  Bogcrs,  41  Pcnn.  St.  120; 
Fitch  u.  Miller,  20  Cal.  352;  Robert  v.  Casey,  25  Mo.  584;  Palmer  u.  Oak- 
ley, 2  Dong.  (Mich.)  433. 

^  United  States  v.  Arcdondo,  G  Pet.  709;  Iverson  v.  Lobcrg,  2G  111.  170; 
Thompson  v.  Talmie,  2  Pet.  157;  Pursley  v.  Hays,  22  Iowa,  1;  Mycr  v. 
Douglass,  47  111.  278. 

«  Townsend  v.  Tallant,  33  Cal.  45. 

'  Mason  «.  Wait,  4  Scam.  127;  Smith  c.  Race,  27  111.  387;  Grignon's 
Lessee  v.  Astor,  2  How.  319. 


CUAKDIA.\'S   i^AI.K.  127 

will  protect  the  wiircrs  riglits  by  rcr[uiring  notice,  or  by  causing 
;i  defense  to  be  interposed  by  a  proper  guardian  ad  litem  it* 
there  shall  be  apparent  cause  to  apprehend  that  the  guardian 
is  abusing  his  trust. ^  But  if,  on  suggestion  as  amicus  curia, 
it  shall  aj^pear  that  there  be  reason  to  apprehend  an  abuse 
of  trust,  then  the  court  will  appoint  a  guardian  ad,  litem. 
Otherwise  the  j)roceedings  to  sell  a  ward's  real  estate,  by  his 
guardian  in  probate,  are  not  necessarily  adversary,  as  against 
the  ward  under  ordinary  circumstances. - 

§  324.  In  the  case  of  SmitJi  v.  Jiace,^  the  court  ath'ert  to 
their  previous  decision  in  Sturms'  case,  25th  Illinois  390, 
wherein  they  held  that  the  minor  heirs  should  have  been 
made  parties  to  the  proceeding  or  suit  of  their  guardian,  and 
qualify  the  doctrine  there  asserted  in  the  following  language : 
"  We  are  aware  that  the  views  here  expressed  are  not  in  accord- 
ance with  those  announced  T?i  re  Sturyns,  25  111.  390.  In 
that  case  it  was  improperly  said  that  the  minors  were  not  par- 
ties to  the  original  suit,  and  their  interest  could  not  be  affected 
by  the  sale  of  their  land  by  the  guardian.  In  that  we  went 
too  far,  according  to  the  case  of  Mason  v.  WaitP 

In  the  cases  of  Mason  v.  Wait,  and  Smith  v.  liace,  the  Illi- 
nois supreme  court  go  to  the  full  extent  of  the  cases  of  Grig- 
noil's  Lessee  v.  Astor,  and  of  Beauregard  v.  New  Orleans,  on 
the  subject  in  cases  of  sales  by  guardians  by  proceedings  in 
probate,  and  hold  that  as  the  Illinois  statute  docs  not  require 
those  in  interest  to  be  made  parties  that  the  action  of  the 
court  without  regard  to  parties  is  within  its  jurisdiction  in 
such  cases  and  is  valid. 

§  325.  The  court  in  their  discretion  might  grant  the  license 
to  sell  in  the  alternative — so  as  to  authorize  the  sale  to  bo 
made  privately  or  at  public  vendue,  under  the  statute  of  Maine 
of  1S2G.*  But  under  the  statutes  of  1S40,  all  sales  of  lands 
in  that  state  made  by  orders,  of  court  are  to  be  at  public 
auction.^ 

'  Smith  c.  Race,  27  111.  387;  Mason  'c.  Wait,  4  Scam.  127. 
s  Mason  «.  Wait,  4  Scam.  127;  Smith  fi.  Race,  27  111.  387. 
s  Smith  V.  Race,  27  111.  380,  392,  393. 
^  Expaiie  Cousins,  5  Grconl.  240. 
'  Ibid. 


128  JUDICIAL  A^'D  exp:cution  sales. 

§  32G.     A  deed  of  -warranty  executed  by  a  guardian  for  liis 
ward's  lands,  made  under  decree  of  the  court  and  sale  thereon, 
carries  only  such  title  as  the  ward  has  at  the  time.     Sucli  war 
ranty  binds  the  guardian  in  his  individual  capacity. ^ 

§  327.  To  sustain  a  guardian's  sale  of  his  ward's  real  estate 
the  authority  of  tlie  guardian  to  sell  must  first  be  shown,  by 
production  of  the  decree  or  license  of  the  court,  or  such  exem 
plification  thereof  as  may  be  proof  thereof,  before  the  deed 
can  be  given  in  evidence.  lie  cannot  sell  without  such 
order.  3 

§  328.  A  sale  and  conveyance  of  the  whole  interest  nomin- 
ally, of  lands,  by  order  in  j^robate  on  apj^lication  of  the 
guardian  of  one  only  of  several  owners,  carries  title  to  tiie 
share  represented  by  the  ward  of  such  guardian,  and  to  no 
more.  The  proceedings  do  not  affect  the  interest  of  the  other 
owners.  3 

§  329.  The  guardian  in  socage  Jias  no  power  to  sell  his 
ward's  real  estate  under  order  in  probate,  after  the  ward  attains 
the  age  at  which  such  guardianship  terminates  by  law.  A 
sale  made  after  the  termination  of  such  guardianship  is  void, 
and  confers  no  rights  whatever  on  the  purchaser.^ 

§  330.  If  the  ward  after  attaining  his  majority  receive  the 
proceeds  of  a  sale  of  his  real  estate  made  by  his  guardian 
during  his  minority,  under  order  of  court,  the  same  being  its 
full  value,  it  is  an  aflSrmance  of  the  sale,  even  though  the  guar- 
dian be  the  purchaser,  if  received  with  projDer  knowledge  of 
all  tlie  circumstances;  but  such  reception  of  tlie  purchase 
money  will  be  construed  so  as  not  to  j)rejudice  the  M^ard,  if  it 
appear  that  he  acted  without  due  precaution  or  2)roper  loiowl- 
edge,  or  was  influenced  by  threats.^ 

§  331.  The  general  rule  is  that  a  guardian  or  other  person 
selling  in  the  relation  of  trustee  cannot  purchase  at  liis  own 

'  Young  V.  Lorain,  11  111.  G24. 
■^  Jackson  v.  Todd,  1  Dutch  (N.  J.)  121. 
'  Bryan  v.  Manninfj;,  C  Jones,  Law,  (N.  C.)  034. 
*  Perry's  Lessee  v.  Brainard,  11  Ohio,  443. 

'  Scott «.  Freeland,  7  S.  &  M.  409;  Michoud  r.  Girod,  4  How.  503,  553, 
Sec  ante,  p.  G8,  n.  4. 


guardl^k's  salk.  129 

sale.  lie  cannot  blend  the  cliaracters  of  both  seller  and  buyer 
so  as  to  unite  them  in  himself. 

§  332.  "VVliere  neither  the  law  nor  the  order  of  sale  ex- 
pressly require  a  report  to  be  made  at  the  lirst  term  after 
granting  the  order,  but  the  law  being  silent  on  the  subject  and 
the  order  merely  requiring  a  report  to  the  next  term  of  the 
court,  it  will  be  construed  to  mean  the  next  term  after  the 
consumation  of  the  sale.  And  if  by  law  no  confirmation  of 
the  sale,  or  approval  thereof,  or  of  the  deed,  be  required,  then 
no  such  approval  or  confirmation  is  necessary  to  the  validity 
of  the  sale,  especially  after  great  lapse  of  time.  Xor  will  the 
failure  of  the  guardian  to  comply  with  the  order  of  court  in 
making  report  of  the  sale,  under  such  circumstances  and  lavr, 
invalidate  the  sale,  when  neither  the  law  or  the  order  of 
court  make  its  validity  dependent  on  such  subsequent  act  of 
the  guardian.  "To  hold  the  title  of  the  purchaser  (say  the 
court)  dependent  upon  the  return  and  report  of  the  guardian, 
is  to  hold  him  resjDonsible  for  a  matter  over  which  he  has  no 
control.  lie  can  look  to  the  order  of  court  and  see  whether 
there  is  authority  to  sell,  and  if  so,  how  far  tliat  authority  is 
restricted ;  but  when  he  sees  an  order,  and  that  the  terms  upon 
\rhich  the  power  to  sell  depends  have  been  complied  Avith,  he  is 
not  responsible  for  the  subsequent  misconduct  of  the  guardian. 
His  title  cannot  and  ought  not  to  be  invalidated  by  matters 
liappening  subsequent  to  its  vesting.  We  might  as  ^vell  require 
him  to  see  to  the  application  of  the  purchase  money.  Un- 
doubtedly where  a  title  cannot  be  consumated  without  certain 
acts  being  done,  and  an  approval  of  the  court  of  those  acts  the 
case  is  difierent.  The  sales  of  administrators  under  the  statute 
are  of  this  character.  Eut  no  provision  is  made  in  the  guar- 
dian law  of  1825  to  secure  the  supervision  of  the  court  over 
tho  sale;  none  Avhich  looks  to  an  approval  by  the  court,  as  a 
preliminary  to  the  jmrchaser's  title." ^ 

§  333.  A  decree  in  probate  for  the  sale  of  a  Avard's  lands 
to  raise  a  certain  amount  of  money  is  necessarily  to  be  con- 
strued to  mean  that  amount  and  the  costs. ^ 

■  Robert  V.  Casey,  23  ^In.  584. 
»  Emery  v.  Vronian,  10  AVis.  (>89,  700. 
S) 


130  JUDICIAL   AND   EXECUTION    SAI,ES. 

§  334.  And  if  a  larger  sum  be  raised  by  such  sale  tlian  the 
decree  calls  for  or  allows,  and  the  sale  be  made  in  parcels,  yet 
the  illegality  will  not  afiect  the  sale  of  those  parcels  that  were 
sold  before  the  aggregate  of  the  j^roceods  amounted  to  an 
excess  of  the  sum  to  be  raised.^ 

§  335.  If  the  lands  are  sold  in  different  order  than  that 
directed  in  the  license  or  decree,  the  defect,  if  it  be  one,  is 
cured  by  the  action  of  tlie  court  in  confirming  the  sale,  for,  in 
the  language  of  the  Supreme  Court  of  Wisconsin,  "  the  same 
court  from  which  the  order  emanated  had  in  its  discretion  the 
power  to  modify  it  or  to  dispense  with  its  strict  performance 
in  the  particular  named.  Tliis  was  done  by  the  order  of  con- 
firmation."- 

II.     Sales  in  I^ioceedings  foe  Paktition. 

g  33G.  Sales  of  land  by  order  of  the  court  in  proceedings 
for  partition  are  judicial  sales.  ^  As  such  they  must  be  rej)orted 
to  the  court  for  confirmation,  and  until  confirmed  they  are  of 
no  effect. 4 

§  337.  On  failure  of  the  purchaser  to  comply  with  the 
terms  of  the  sale,  if  the  land  be  re-sold  by  order  of  the  court 
and  sell  for  a  less  price  then  at  first,  tlie  original  oAvner  or  the 
commissioners  selling  may  sue  for  and  recover  of  the  first 
purchaser  the  loss  on  the  re-sale.  ^ 

§  338.  A  court  of  equity  may  partition  part  in  hind  and 
sell  other  parts  of  lands  as  may  seem  for  the  best  interests  of 
tlie  jxarties.*' 

§  330.  Tlie  purchaser  inider  a  sale  in  2")artition  takes  a  con- 
clusive title  against  the  parties  to  the  suit,''  and  against  their 
grantees  by  conveyance  made  during  the  proceedings.  ^ 

'  Emery  v.  Vroman,  19  Wis.  G89,  700. 
2  Ibid. 

••'  Ilutton  V.  Williams,  3d  Ala.  503. 

*  Ilutton  V.  Williams,  35  Ala.  503;  IIcss  v.  Voss,  53  III.  472. 
'  Ilutton  V.  Williams,  35  Ala.  503. 
•^  Haywood  v.  Judson,  4  Barb.  228. 

■^  Gates  V.  Irick,  2  Rich.  593;  Allen  v.  Gault,  27  Pcnn.  St.  473. 
8  Baird  v.  Corwin,  17  Tenn.  St,  4G2;  Miclioud  v.  Girod,  4  IIow.  503,  5D9; 
Davoue  v.  Fanninir,  2  Johns.  Cli.  253. 


SALES   FOli    I'AKTITIOX.  131 

§  310.  If,  wliilst  proceedings  arc  pending  for  tlic  partition 
of  lands  licld  in  common,  a  creditor  of  one  of  tlie  tenants  in 
common  obtain  a  judgment  against  liis  debtor,  tlic  creditor  so 
obtaining  judgment  lias  no  other  or  better  riglit  than  has  his 
debtor  in  the  subject  matter  of  the  proceeding,  and  cannot 
require  the  sale  in  partition  to  be  made  for  cash,  so  as  to  meet 
the  cash  demands  of  his  judgment. ^  And  so  in  Illinois  the 
lien  of  a  mortgage  given  bj  one  of  the  parties  to  partition 
proceeding  during  the  pendency  of  such  proceedings,  follo:vs 
the  interest  Avhen  set  off  of  the  jxarty  giving  the  mortgage.- 

§  311.  In  Illinois  it  has  been  held  that  in  sales  in  partition 
under  the  statute,  proof  of  the  notice  of  sale  should  be  filed 
and  made  to  appear  in  the  ^proceedings  v/ith  a  copy  of  tlie 
notice;^  but,  in  the  same  state,  in  partition  sales  in  the  ordi- 
nary court  of  chancery,  it  is  holdcn  that  the  chancery  court 
need  not,  as  it  does  not  proceed  under  the  statute,  conform  to 
the  statute  in  this  respect.  "* 

§  342.  In  sales  in  proceedings  for  partition  all  persons  in 
interest,  including  lien  holders  against  the  property  and  holders 
of  liens  against  separate  shares  or  interests,  are,  in  Illinois, 
required  to  be  made  parties,  and  that  too  -whether  the  interest 
be  a  present  and  certain  or  a  contingent  one.  Thus,  having 
before  it  the  parties  in  interest  both  as  coparceners  and  credit- 
ors, the  court  will  then  declare  the  rights  and  interest  of  eacli 
of  the  parties  and  make  such  decree  as  will  protect  the  same. 
The  money  arising  from  the  sale  should  be  brought  into  court 
and  applied  by  tlie  order  of  the  court  where  it  belongs,  and  the 
several  liens  should  be  displaced  and  replaced  by  their  several 
shares  of  the  funds  arising  from  the  sale,  and  the  residue 
distributed  to  the  proper  owners,  so  as  to  dispose  of  the  whole 
matter  and  give  the  purchaser  a  clear  title.  ^' 

§  313.     Decrees  of  sales  in  partition  should  not  only  ascer- 

'  Stern  V.  Epstin,  14  Kicli.  Eq.  5;  Craaicbaugli  v.  Pritchett,  8  Ohio  St. 
G4C. 
="  Loomis  V.  Riley,  24  111.  307;  JM.mly  i-.  Pettec,  38  111.  12S,  133 
3  Hess  V.  Voss,  52  111.  473,  479;  Tibbs  r.  Allen,  29  111.  53.j. 
*  Hess  V.  Voss,  52  111.  473,  479. 
"  Kil2;our  v.  Crawford,  51  111.  249. 


132  JUDICLVL   AND    EXECUTION   SALES. 

tain  and  declare  the  relative  riglits  or  interests  of  tlie  2:»artics 
and  give  sueli  judgment  as  may  sustain  tlie  same,  but  should 
describe  the  land  to  be  sold  and  the  sale  of  land  not  included 
in  the  order  of  sale,  although  included  in  the  application,  is 
error.  If  there  be  minors  interested  in  the  suit  they  must  be 
made  j^arties  by  process  and  actual  service.  The  better  author- 
ity is  that  appointment  of  guardian  ad  litem  to  defend  for 
them  without  such  prior  proofs  and  service  is  without  unau- 
thorized and  is  error  for  which  a  decree  will  be  reversed,  as  is 
also  the  omission  to  find  the  several  relative  interests,  and  also 
the  selling  of  lands  not  described  in  the  decree.  For  such 
sale  of  lands  not  decreed  to  bo  sold  and  for  proceeding  without 
making  the  minors  parties,  the  sale,  it  is  believed,  though 
affirmed,  will  be  void.^ 

§  34:-i.  In  Ohio,  sales  in  proceedings  for  partition  do  not 
carry  to  the  purchaser  the  growing  crops  situate  npon  the 
premises.  The  court  say:  "  Sales  made  in  partition  are  sub- 
ject to  regulations  entirely  similar  to  those  which  govern  sales 
on  ordinary  execution.  The  lands  m«st  be  appraised  and  can- 
not be  sold  for  less  than  two-thirds  of  their  appraised  value ; 
and  the  same  considerations  Avhich  forbid  ns  to  hold  that  the 
growing  crojos  pass  to  the  purchaser  in  the  one  case,  forbid  it 
in  the  other." ^  In  Iloiits  v.  Showalter  the  court  say,  Bkixk- 
ERHOFF,  Justice:  ""When  an  appraisement  is  made,  it  cannot 
he  foreseen  when  a  sale  will  be  efiected.  It  is  not  for  the 
interest  of  any  party,  nor  for  the  public  interest,  that  the  land 
should  thenceforth  lie  waste;  then  there  may  have  been  no 
crop  sown  or  j)lanted,  but  when  the  sale  comes  to  be  made 
there  may  be  growing  crops  put  into  the  ground  in  the  mean- 
time. If  these  passed  by  the  sale  it  would  be  unjust  to  the 
debtor,  for  they  could  not  have  been  valued." 

§  345.  Thus  it  is  that  in  Ohio,  although  in  partition  sales 
no  interest  of  a  debtor  is  involved,  yet,  as  the  statute  of  that 
state  requires  appraisement  in  partition  sales  as  in  sales  on 
execution,  it  follows  that  the  same  objection  arises  in  the  one 

'  Ilickcnbolham  v.  Blackledge,  54  111.  31G,  018. 

2  Ilouts  V.  Showalter.  10  Ohio  St.  124,  137;  Cassilly  v.  Rhodes,  13  Ohio 
St.  88. 


SALES   FOB    rAETITIOX.  133 

case  as  in  tlie  other  to  allowing  the  growing  crops  to  pass  by 
the  sale.  That  is  the  impracticability  of  fixing  their  valua- 
tion, whilst  without  valuation  they  cannot,  with  the  realty,  bo 
sold.i 

'  Houts  V.  Showalter,  10  Ohio  St.  124,  127. 


CIIAPTEE   YIII. 

PURCHASES  BY  PERSONS  CONCERNED  IN  SELLING. 

§  34:0.  The  policy  of  the  hiw  forbids,  as  conducive  to  fraud 
and  inimical  to  fair  dealing,  the  purchase  by  masters,  trustees, 
executors,  administrators,  guardians,  and  all  others,  at  their 
own  sales,  as  also  all  agents,  public  and  private,  who  are  con- 
cerned in  selling,  whether  such  purchase  be  direct  or  indirect; 
and  if  made,  such  sales  will  be  set  aside  on  application  of  the 
parties  interested.^     When  the  person  selling  is  willing  to  give 

'  Lockwood  D.  Mills,  39  111.  602;  Sheldon  v.  Newton,  3  Ohio,  St.  494; 
Tony  V.  Bank  of  Orleans,  9  Paige.  G49;  Kruse  v.  Steffen,  47  111.  113; 
Michoud  1).  Girod,  4  How.  503 ;  Wormsley  v.  Wormsley,  8  Wheat.  421 ; 
Davone  v.  Fanning,  2  Johns.  Ch.  253 ;  Church  v.  Ins.  Co.  1  Mason  C.  C.  345 ; 
Remick  v.  Butterfield,  11  Foster,  (N.  H.)  70;  Shaw  v.  Swift,  1  Cranch.  565 ; 
Rcihardson  v.  Jones,  3  Gill.  &  J.  1C3 ;  Ward  v.  Smith,  3  Sandf.  Ch.  593 ;  Dob- 
son  ».  Racey,  3  Sandf.  Ch.  60;  Haddix  v.  Haddix,  5  Litt.  302;  Dorsey®.  Dor- 
scy,  3  Har.  &  J.  410 ;  Davis  v.  Simpson,  5  Har.  &  J.  147 ;  Base  v.  Abeel,  1 
Paige.  393;  DeCatcrs  v.  DeChamont,  3  Paige,  178;  Purzey  v.  Seuier,  9  Wis. 
370;  Torry  v.  The  Bank,  9  Paige,  648;  Iddings  v.  Bruen,  4  Sandf.  Ch.  223; 
Field  V.  Arrowsmith,  3  Humph.  (Tenn.)  442;  Wilson  v.  Troup,  3  Cow.  19G; 
:McCants  v.  Bee,  1  McCord,  Ch.  389;  Britton  v.  Johnson,  2  Hill,  434;  Salt- 
marsh «.  Been,  4  Porter,  283 ;  Miles  v.  AVhceler,  43  111.  123 ;  Harris  v.  Parker, 
41  Ala.  604 ;  Roberts  v.  Fleming,  53  111.  196 ;  Griffin  v.  Marine  Co.  52  111.  130 ; 
Pewrouneau  «.  Bleakley,  14  111.  15;  Tcrrill  «.  Anchauer,  14  Ohio,  St.  80; 
Swazey  «.  Burke,  12  Pet.  11 ;  Robins  v.  Butler,  24  HI.  387 ;  Dennis  v. 
McCagg,  32  111.429;  Lockwood  ®.  Mills,  39  111.  602;  Forbs  v.  Halsey,  26 
N.  Y.  53;  Barrington  «.  Alexander,  6  Ohio,  St.  189;  Mitchel  «.  Dunlap,  10 
Ohio,  117;  Glass  v.  Grcathouse,  20  Ohio,  503;  Rice  v.  Cleghorn,  31  Iud.80, 
In  Kruse  v.  Steffen,  the  supreme  court  of  Illinois  lays  down  the  law  of  this 
subject  in  the  following  terms:  "As  a  general  rule,  a  person  acting  in  a 
fiduciary  capacity,  cannot  be  permitted  to  purchase  property  at  his  own 
sale.  And  in  such  case  it  does  not  matter  whether  the  purchase  is  in  the 
name  of  the  person  conducting  the  sale,  or  in  the  name  of  another  for  his 
use.  McConnel  v.  Gibson,  13  111.  138.  And  in  such  a  sale,  even  where 
there  is  no  fraud,  the  sale  will  be  set  aside  if  the  party  in  interest  shall 
apply  in  a  reasonable  time  for  that  purpose.  Thorp  v.  IMcCullum,  1  Gilm. 
037.    The  fact  that  the  person  entrusted  by  the  law  to  make  the  sale, 

(134) 


rUECnASES   by    TERSONS   COXCERXED   IX    SELLING.  135 

more  for  tlic  property  than  any  one  else,  he  should  apply  to 
the  court  for  leave  to  become  a  purchaser.  The  court  in  their 
discretion  may  permit  it.'^ 

§  3i7.  The  supreme  court  of  the  United  States  hold  that 
all  such  sales  are  "fraudulent  and  void  and  may  be  so 
declared. "2  Thev  say:  "Tlie  general  rule  stands  upon  our 
great  moral  obligation  to  refrain  from  placing  ourselves  in 
relations  which  ordinarily  excite  a  conflict  between  self  interest 
and  integrit3\  It  restrains  all  agents,  public  and  private." 
That  "  it  therefore  prohibits  a  party  from  purchasing  on  his 
own  account,  that  which  his  duty  or  trust  requires  him  to  sell 
on  account  of  another,  and  from  purchasing  on  account  of 
another,  that  which  he  sells  on  his  own  account.  In  effect  he 
is  not  allowed  to  unite  the  two  opi^osite  characters  of  buyer 
and  seller,  because  his  interests  when  he  is  selling  or  buying 
on  his  own  account  are  directly  conflicting  with  those  of  the 
person  on  whose  account  he  buys  or  sells."  That,  "he  cannot 
be  at  the  same  time  vendor  and  vendee."     And,  "that  no  rule 

becomes  the  purchaser  Avlietlier  by  direct  or  indirect  means,  creates  such  a 
presumption  of  fraud  as  requires  the  sale  to  be  vacated  if  application  is 
made  in  proper  time.  *  *  *  *  This  rule  is  regarded  as  firmly  estab- 
lished by  this  court,  and  it  is  deemed  unnecessary  to  review  authorities  or 
to  discuss  the  reason  of  the  rule."  47  111.  p.  114,  115.  In  Lockvy-ood  v. 
Mills,  39  111.  603,  the  same  court  assert  the  rule  as  follows :  "  The  evidence 
shows  that  Green  was  creditor,  administrator,  auctioneer  and  purchaser,  at 
the  sale,  thus  having  it  in  his  power  to  strike  down  the  property  at  his 
own  price,  and  we  see  as  the  result  of  representing  all  these  relations  to 
the  estate,  that  960  acres  of  land  were  sold  for  the  sum  of  $1,134.  The 
evidence  shows  the  land  embraced  in  the  deed  to  Lockwood,  worth  from 
six  to  ten  dollars  per  acre.  If  they  Avere  worth  eight  dollars  per  acre,  that 
would  give  $3,840,  while  they  sold  but  for  $000;  and  if  the  whole  9G0  acres 
were  worth  the  same  per  acre,  their  value  would  be  $7,680,  and  they  onl}- 
brought  $1,134.  A  large  compensation  for  acting  as  creditor,  administrator, 
crier  and  purchaser  at  his  own  sale.  The  rule  is  well  established  in 
equity,  that  the  simple  fact  the  purchase  by  asignees,  trustees,  commis- 
sioners, executors,  or  administrators  at  their  own  sales,  renders  the  sales 
invalid  and  it  will  be  set  aside  by  the  court."    39  111.  008. 

'  Michoud  «.  Girod,  4  How.  558;  Ai-mor  v.  Cochrane,  66  Pcnn.  St.  308, 
311.  He  should  report  the  bid  and  apply  for  leave  to  give  more.  Davoue 
V.  Fanning,  2  Johns-  Ch.  252,  261. 

-  Michoud  V.  Girod,  4  How.  503,  553. 


13G  JUDICIAL   AiST>    EXECUTION    SALES. 

is  better  settled  than  tliat  a  trustee  cannot  become  a  purcliascr 
of  the  trust  estate."  ^ 

§  34S.  "An  executor  or  administrator  is  in  equity  a  trustee 
for  heirs,  legatees,  and  creditors." ^  Davoue  v.  Jb\cnnin(j  was 
the  case  of  an  executor  for  whose  wife  a  j^urchase  was  made  by 
one  Hedden  at  pnblic  auction  hona  fide,  for  a  fair  j^rice,  of  a 
part  of  the  estate  which  Fanning  administered,  and  the  prayer 
of  the  bill  was  that  the  purchase  might  be  set  aside  and  the 
premises  re-sold.  The  case  was  examined  with  special  refer- 
ence to  the  right  of  an  executor  to  buy  any  part  of  the  estate 
of  his  testator.  And  it  was  affirmed,  and  we  think  rightly, 
that  if  a  trustee  or  person  acting  for  others,  sells  the  trust 
estate  and  becomes  himself  interested  in  the  purchase,  the 
cestuis  que  trust  are  entitled,  as  of  course,  to  have  the  purchase 
set  aside  and  the  property  re-ex230scd  to  sale  under  the  direc- 
tion of  the  court.  And  it  makes  no  difference  in  the  application 
of  the  rule  that  a  sale  was  at  public  auction,  hona  fide  and  for 
a  feir  j^rice,  and  that  the  executor  did  not  purchase  for  him- 
self, but  that  a  thii'd  person,  by  j^revious  arrangement  with  the 
executor,  became  the  purchaser  to  hold  in  trust  for  the  seperate 
use  and  benefit  of  the  wife  of  the  executor  who  Avas  one  of  the 
cestuis  que  trust,  and  who  had  an  interest  in  the  land  under 
the  will  of  the  testator.  The  inquiry  in  such  case  is  not 
whether  there  was  or  was  not  fraud  in  fact.  The  purchase  is 
void  and  will  be  set  aside  at  the  instance  of  the  cestuis  que 
trust,  and  a  re-sale  ordered  on  the  ground  of  the  temiptation  to 
abuse,  and  of  the  danger  of  imposition  inaccessible  to  the  eye 
of  the  court.  "\Ve  are  aware  that  cases  may  be  found  in  the 
rej)orts  of  some  of  the  chancery  courts  in  the  United  States, 
in  which  it  has  been  held  that  an  executor  may  purchase,  if  it 
be  without  any  property  of  his  testator  at  open  and  public  sale 
for  a  fair  price,  and  that  such  purchase  is  only  voidable  and  not 
void  as  wo  hold  it  to  be.  But  with  all  due  respect  for  the 
learned  judges  who  have  so  decided,  we  say  that  an  executor 
is  in  equity  a  trustee  for  the  next  of  kin,  legatees  and  creditors, 

'  Miclioud  V.  Girod,  4  IIow.  555.  Sec  also  Wormley  i\  Wormlcy,  SWhcat. 
421. 

"  Michoud  V.  Girod,  4  IIow.  553,  554. 


rUKCHASKS    liY    I'EKSOXS    CONCERNED   IN    SELIJNG.  137 

find  tliat  we  have  been  nnable  to  find  any  one  well  considered 
decision  with  other  cases,  or  any  one  case  in  the  books  to  sustain 
the  right  of  an  executor  to  become  tlie  purchaser  of  the  prop- 
erty which  he  represents  or  any  portion  of  it,  though  he  has 
done  so  for  a  fair  price,  without  fraud,  at  a  public  sale.''^  And 
again,  in  the  same  case,  as  if  to  put  aside  all  questions  in  refer- 
ence the  general  ty  of  the  doctrine  asserted  by  it,  the  court  say: 
"  TVo  have  thus  shown  tliat  those  purchases  are  fraudulent  and 
void  from  having  been  made  i^^^^'^'^^i^^'positam  'personam^  and 
if  they  Avere  not  so  on  that  account,  that  they  are  void  by  the 
rule  in  equity  in  the  courts  of  England,  and  as  it  prevails  in 
the  courts  of  equity  in  the  United  States."- 

"  The  rule  as  expressed  embraces  every  relation  in  which 
there  may  arise  a  conflict  between  the  duty  which  the  vendor 
or  purchaser  owes  to  the  person  with  whom  he  is  dealing,  or 
on  whose  account  he  is  acting  and.  his  own  individual  interest."" 
It  is  the  same  whether  the  sale  be  made  with  or  without  the 
sanction  of  judicial  authority,  where  the  person  selling  rej^re- 
sents  that  in  which  others  are  interested ;  and  releases  by  those 
in  interest  made  in  ignorance  of  the  circumstances  will  not 
bind  them.^ 

§  340.  In  some  of  the  state  courts  such  purchases  are 
regarded  as  conveying  the  legal  title  in  trust  for  those  inter- 
ested in  the  estate  sold,  yet  so  iar  void  in  equity  that  they  will 
be  set  aside  at  the  instance  of  the  certui  qtie  trust,  without 
other  cause  than  the  single  fact  of  the  purchase  being  by  or 
for  the  trustee  or  person  selling.* 

§  350.  In  others  it  is  liolden  that  although  thus  hold  in 
trust  and  the  sale  is  liable  to  be  set  aside  as  against  the  pur- 
chaser, within  a  reasonable  time,  that  such  sale  is  valid  in  favor 

'  Miclioud  v.  Girod,  4  How.  S.liG,  557. 

^ Ibid. 

miclioud  T.  Girod,  4  How.  503,  553,  559;  Roberts  v.  Fleming,  53  111. 
19G;  Barrington  v.  Alexander,  6  Ohio,  St.  189. 

^  Davoue  c.  Fanning,  2  Johns.  Ch.  253;  Harkrider  -y.  Harvey,  3  Ind.  104, 
105;  Glass  v.  Greathouse,  20  Ohio,  503;  Swift  v.  Swift,  1  Ind.  565;  Breck- 
cnridge  ■c.  Holland,  2  Blackf.  377;  Terrill  v.  Auchaur,  14  Ohio  St.  80.  In 
Ohio  an  appraiser  of  the  property  in  probate  sales  is  prohibited  to  bid  by 
statute.    Ibid.    Barrington  v.  Alexander,  6  Ohio  St.  189. 


13  S  JUDICIAL   AXD    EXECIJTION    SALES. 

of  a  Ijonafidc  purcliaser  under  him  before  avoidance  and  vdtli- 
out  notice  of  liis  tlms  liaving  pnrcliased  at  Lis  own  sale.^  But 
if  the  2>i'inciple  that  a  grantee  is  bound  by  the  recitals  con- 
tained in  the  title  deed  of  his  grantor  is  applicable  to  these 
sales,  it  is  difficult  to  conceive  by  what  rule  of  law  there  may 
be  l}ona  fide  2>T-^i"t^hasers,  under  such  circumstances,  except 
where  the  trust  is  a  secret  one." 

§  351.  In  yet  another  class  of  decisions,  though  the  legal 
title  is  suj^posed  to  pass  by  the  sale  and  conveyance,  and 
though  it  is  not  exj)ressly  holden  that  the  title  is  thus  held  by 
the  grantee  in  trust  for  his  cestui  que  trusty  yet  it  is  -holden 
that  such  sales  are  void  in  equity  at  the  election  of  those  inter- 
ested in  the  property  sold,  and  will,  witliin  a  reasonable  time, 
on  their  application,  be  set  aside. -^ 

§  352.  And  it  is  further  held  in  some  of  these  cases  tliat  if, 
on  a  re-sale,  the  property  should  not  sell  for  as  much  as  before 
those  interested  therein  may  elect  ^o  affirm  the  first  sale  and 
hold  the  trustee  to  his  bargain. 

§  353.  It  matters  not,  so  far  as  tlie  equitable  effect  is 
involved,  whether  the  purchase  be  made  directly  by  and  in  the 
name  of  the  trustee  or  indirectly  in  the  name  and  through  the 
intervention  of  another  person.*  In  the  case  of  Miles  v. 
Wlieeler  the  lands  of  infant  heirs  being  sold  in  probate  by  the 
administrator  were  fraudulently  purchased  for  himself  through 
tlie  agency  of  another  person  as  bidder.  Tlie  sale  was  in  1S4I. 
The  administrator  occupied  the  premises  until  his  death,  wliieli 
occurred  in  1S59.  In  ISGl  the  lieirs  whose  property  had  thus 
been  fraudulently  sold  filed  their  bill  in  equity  for  a  convey- 
ance of  the  property  and  for  an  account  of  rents  and  j)rofits 

*  Wyman  ^^  Hooper,  2  Gray,  141;  Clooa  «.  Ilayman,  13  Mot.  231;  Eol>- 
bins  «.  Bates,  4  Cusli.  100. 

^  Brush  W.Ware,  15  Pet.  93,  111,  112,113;  Rccder  «.  Barr,  4  Ohio,  458 ; 
"Willis  «.  Buclier,  3  Biun,  455;  Livingstone  «.  Nceley,  10  Jolins.  374; 
"Wormley  v.  Wormley,  8  Wheat.  421. 

=■  Shaw  «.  Swift,  1  Incl.  5G5;  Ttemick  v.  Butterficld,  11  Foster  (X.  II.)  70; 
Wyman  v.  Hooper,  2  Gray,  141;  Jackson  «.  Van  Dalfsen,  5  Johns.  44; 
Blood  v.  Hayman,  13  Met.  231 ;  Hoskins  t\  Wilson,  4  Dev.  &  Batt.  243 ; 
Beeson  v.  Bceson,  9  Barr  (Penu.)  279. 

*  Church  t.  Ins.  Co.  1  Mason  C.  C.  341 ;  Miles  t.  Wheeler,  43  111.  123. 


I'UECIIASKS    BY    I'EnSOXS    CONCEKNim    IN    SELLING.  139 

against  the  devisees  of  tlie  deceased  administrator  or  fraudulent 
])urcliaser.  ISTotwithstanding  the  lapse  of  time  which  had 
intervened  it  was  holdcn  tliat  they  were  entitled  to  r(ilicf.  ^ 

§  354,  An  administrator,  who  was  also  one  of  the  heirs, 
confessed  judgment  against  the  estate  and  sulTered  the  lands 
to  be  sold  on  execution,  the  jiurchaser  being  the  attorney  of 
the  plaintiff,  and  openly  avowing  at  the  sale  that  he  was  buy- 
ing merely  to  secure  the  debt,  and  afterwards,  without  making 
any  payment,  deeded  the  land  for  the  amount  bid  to  the 
administrator  in  his  personal  right,  receipting  the  same  after 
making  such  deed  on  the  execution,  was  holden  not  to  be  a 
Itona  fide  purchaser,  and  it  was  also  holden  that  the  deed  to 
the  administrator  from  the  execution  purchaser  was  not  a  Ijona 
fide  conveyance  as  against  th.e  other  heirs.  The  Supreme  Court 
of  the  United  States  use  the  following  language  in  disposing 
of  the  case:  "In  making  the  purchase  Eoss  (the  attorney) 
seems,  in  effect,  to  have  acted  as  the  agent  of  the  adminis- 
trator, and  it  was  proper  for  the  jury  to  inquire  whether  the 
transaction  was  not  fraudulent.  If  the  administrator  suffered 
the  land  to  be  sold  through  the  agency  of  Eoss  wdth  the  view 
of  securing  the  title  to  himself,  to  the  exclusion  of  the  other 
heirs  of  his  father,  the  proceeding  was  fraudulent  and  void; 
and  Eoss  could  not  be  considered  a  honafide  purchaser  against 
the  legal  and  equitable  rights  of  the  plaintiffs,  he  not  having 
paid  the  jDurchase  money,  the  deed  which  he  executed  to 
Ormsley  (the  administrator)  is  not  a  Jjona  fide  conveyance."- 

§  355.  The  two  opposite  characters  of  seller  and  purchaser 
cannot  be  united  in  tiie  same  person,  unless  by  thQ  j)Gi'iiiission 
of  the  court  first  obtained ;''^  hence,  a  trustee,  commissioner  to 
sell,  executor,  administrator,  guardian,  or  other  person  selling 
or  conducting  the  sale,  are  incapable  of  j^urchasing  at  tlicir 
own  sales;  sales  so  made  to'  themselves  are  holden  by  the 
Supreme  Court  of  the  United  States  to  be  void.     That  court 

'  Miles  V.  Wheeler,  43  111.  123. 

-  Swazey  v.  Burke,  12  Pet.  11.  In  this  case  the  attornej-  Miicn  he  bid  in 
the  lartds  declared  his  readiness  to  allow  the  heirs  to  redeem,  and  that  the 
only  object  of  the  purchase  was  to  secure  the  client's  debt. 

^  Michoud  X.  Girod,  4  How.  503,  557. 


140  JUDiaAL   AND   EXECUTION   SAEES. 

say:  ''We  arc  aware  that  cases  may  be  found  in  wliicli  it  lias 
been  lielcl  tliat  an  executor  may  pnrcbase,  if  it  be  Avithont 
fraud,  any  property  of  bis  testator  at  an  oj)en  and  public  sale, 
for  a  fair  price,  and  tliat  sucb  purchase  is  only  voidable  and 
not  void,  as  we  bold  it  to  be."i  That  court  holds  such  sale  as 
absolutely  void. 

§  356.  A  sale  of  real  estate  situated  in  Ehode  Island,  by 
an  executrix,  under  a  license  granted  by  the  probate  court  of 
New  Hampshire,  is  void,  and  the  deed  is  inoperative;  but  con- 
firmation by  act  of  the  Ehode  Island  Legislature  renders  it 
valid." 

'  Miclioud  V.  Girod,  4  How.  ij03,  557. 
"  Wilkinson  v.  Leland,  2  Pet.  G27,  053. 


CHAPTEE   IX. 


THE  DEED. 

I. 

By  wnoM  to  be  Made. 

ir. 

To   WHOM  TO   BE   MaDE. 

III. 

WhEX   TO  BE   JMaDE. 

IV. 

Its  Recitals  axd  Descriptioxs. 

V. 

What  passes  by  it. 

I.     Br  WHOM  TO  BE  Made. 

§  357.  Althougli  tlio  sale,  in  a  popular  point  of  viev;',  is 
Bupposcd  to  liavc  been  made  wlicn  tlie  bargain  is  closed;  yet, 
in  a  legal  sense,  the  sale  is  not  complete  until  the  deed  is 
delivered.!  Therefore,  it  follows  that  as  making  of  the  deed 
is  part  of  the  act  of  selling,  the  person  appointed  to  sell  is  the 
only  one  who  can  make  the  deed.  Tlie  sale  is  not  perfected 
until  confirmation  thereof  and  delivery  of  the  deed;  and  in 
some  cases,  as  where  approval  of  the  deed  by  the  court  is  also 
required,  then  only  by  the  additional  act  of  approval. - 

§  358.  A  contrary  doctrine  is  alleged  by  Justice  Catox,^  in 
Jackson  v.  Warren,  to  exist  in  Illinois.  His  Honor  treats  of 
the  subject  as  follows:  " In  England  the  practice  is  to  keep 
the  biddings  open  at  a  master's  sale,  so  that  any  person  may 
advance  on  a  bid  received  by  the  master,  which  he  reports  to 
the  court,  so,  until  a  final  confirmation  of  the  sale,  no  one  can 
be  considered  as  a  purchaser,  but  a  mere  bidder;  but  under 

!^[acy  V.  Raymond,  9  Pick.  285 ;  Lischey  v.  Gardner,  3  W.  and  Scrgt.  314 ; 
3  Daniel,  CIi.  1474;  Rawlings  v.  Bailej^,  15  111.  178;  Blossom  i\  R.  R.  Co.  8 
Wall.  207;  Child  «.  Hurst,  2  Swan,  487;  Robinson's  Appeal,  G2  Pcnn.  St. 
21G;  HaysB.  Hate,  19  Ala.  3G7:  Koehler  «.  Ball,  3  Kansas,  IGO;  Valleei-. 
Fleming,  19  Mo.  454;  Williamson  v.  Berry,  8  How.  49G. 

2  Macy  v.  Raymond,  9  Pick.  385;  Rawlings  v.  Bailey,  15  111.  178;  Young 
V.  Keogli,  11  111.  G43;  Ayres  v.  Baumgartner,  15  111.  444;  Blossom  v.  R.  R. 
Co.  3  Wall.  205. 

'  33  111.  331. 

(141) 


142  JUDiaAL   AND    EXECUTION    SALES. 

our  practice  at  sucli  sales,  a  valid  and  binding  contract  of  sale 
is  made  Avlicn  the  liammcr  falls.  In  tlic  absence  of  fraud, 
mistake,  or  some  illegal  practices,  the  purchaser  is  entitled  to 
a  deed  on  the  payment  of  the  money."  Tliis  decision,  so  far 
as  relates  to  the  binding  eft'ect  of  the  sale  at  the  fall  of  tlic 
liammer,  seems  to  bo  in  direct  conflict  with  the  j^revious  deci- 
sions in  that  State  of  Young  v.  Keogh,  ^nd  liawUngs  v.  Bailey, 
as  also  the  subsequent  decision  of  Dills  v.  Jasper,  and  the 
Quincij  Seminary  v.  The  Same,  wherein  the  same  doctrine  is 
avowed  as  is  laid  down  by  us  above.  ^  ♦ 

§  350.  Though  the  English  practice  of  lveej)ing  open  tlie 
biddings  at  a  judicial  sale  for  an  advanced  bid  until  confirma- 
tion, may  not,  in  the  States,  be  the  general  practice,  yet  it  is 

Youug  V.  Keogh,  11  111.  G42;  Eawlings  t\  Bailey,  15  III.  178;  Dills  v. 
Jasper,  33  111.  2G3.  lu  tlie  latter  case.  Justice  Beckwitii,  delivering  the 
opinion  of  the  court,  saj's:  "A  master  in  chancery,  exposing  property  for 
sale,  should  receive  bids  for  it  and  report  the  largest  one  to  court  for  its 
approval.  "While  such  is  the  correct  practice,  we  do  not  intend  to  say  that 
if  it  is  not  followed  we  should  hold  the  sale  void.  If  the  order  upon  which 
he  acts  contains  especial  directions  in  regard  to  requiring  a  deposit,  they 
should  he  followed;  hut  in  case  no  such  directions  are  given,  the  master 
may,  in  his  discretion,  require  a  part  or  the  whole  of  a  bid  to  be  deposited 
Avith  him ;  or  he  may  entirely  dispense  with  such  deposit.  A  bidder 
is  not  allowed  to  retract  his  bid  after  its  acceptance  by  the  master, 
if  it  is  approved  by  the  court  within  a  reasonable  time;  but  a  bid,  or 
Avithout  a  deposit,  although  it  is  accepted  by  the  master,  does  not  become 
an  absolute  contract  until  it  is  approved  by  the  court.  The  bidder  at 
such  a  sale  merely  agrees  to  purchase  the  property  upon  the  terms  named 
by  him  if  the  same  are  approved  by  the  court;  and  until  the  bid  is 
reported,  and  the  report  is  confirmed,  the  sale  is  incomplete,  and  the 
bidder  is  under  no  obligation  to  complete  the  purchase.  In  this  country 
the  master  usually  requires  the  amount  of  the  bid  to  be  deposited  with 
him  at  the  time  of  its  acceptance,  or  immediately  thereafter;  and  on 
failure  to  do  so,  the  master  may  reject  the  bid,  and  may  again  e.\pose  the 
property  for  sale;  or  he  may  report  the  bid  to  the  court,  together  with  the 
failure  of  the  bidder  to  make  a  deposit.  The  master  should  not  take  the 
responsibility  of  rejecting  a  bid  after  it  has  been  once  accepted  by  him, 
where  there  is  danger  of  loss  to  the  parties  in  so  doing,  because  he  may 
render  himself  liable  for  it.  After  the  court  has  approved  of  the  bid,  it 
may  summarily  require  the  bidder  to  pay  the  amount  thereof,  or  it  may 
order  the  property  to  be  re-sold  at  the  bidder's  risk  and  expense;  and  if, 
upon  a  re-sale,  it  does  not  bring  the  amount  of  the  bidder's  liability,  the 
court  may  summarily  enforce  the  payment  of  the  difference." 


THE   DEED,  143 

believed  that,  as  a  general  rule,  an  advanced  bid,  materially 
increasing  tlic  amount,  will  either  be  received  by  the  court  or 
else  cause  a  re-sale  and  re-opening  of  the  biddings  to  be  ordered 
at  any  time  before  final  coniirmation  of  the  sale.  ^ 

§  360.  As  to  the  necessity  of  such  coniirmation,  in  some 
shape  or  other,  there  can  be  no  doubt,  as  a  general  rule,  thongh 
the  j)ractice  may  vary  in  different  places;  in  proceedings  in  a 
court  of  ordinary  chancery  jurisdiction  usually  by  formal  order 
of  confirmation,  if  not  also  by  an  order  approving  the  deed;^ 
and  in  .  probate  and  orphan's  courts,  whose  proceedings  are 
directed  by  statute,  but  which  also,  at  the  same  time,  in  making 
sales  of  real  estate,  exercise  a  limited  chancery  jurisdiction  in 
some  States  by  mere  approval  of  the  deed,  but  which  in  all 
cases  must  depend  upon  the  local  statutory  requirement,  if 
there  be  such,  and  if  not,  then  confirmation  or  approval  of  sale 
should  appear  of  record  in  accordance  with  the  general  rule,  so 
as  in  some  shape  or  other  to  show  the  approval  or  confirmation 
of  the  act  by  the  court. 

§  3G1.  ^VHiere  an  administrator  obtains  a  license  to  sell  the 
I'oal  estate  of  a  decedent  for  payment  of  debts,  and  dies  before 
tlie  confirmation  of  the  sale,  his  successor  may  go  on  and  com- 
])lete  the  transaction,  if  previous  proceedings  be  regular, 
without  any  further  order  of  the  court  for  that  j^urposc,  just 
as  in  case  of  any  other  business  of  the  estate. ^ 

§  3G2.     The  license  must  be  considered  as  inuriug  to  the 

'  Norton  v.  Norton,  2  Brad.  (N.  Y.)  200;  Davis  v.  Stewart,  4  Texas,  223; 
Hays'  Appeal,  51  Penn.  St.  58 ;  Cliilders  v.  Hart,  2  Swan,  (Teun.)  487 ;  Wright 
V.  Cantzon,  31  Miss.  514;  King  v.  IMasterton,  16  N.  Y.  174, 

-Moore  V.  Titman,  33  111.358,307,  3G9;  Sliriver  v.  Lynn,  3  How.  43; 
Blossom  V.  K.  R.  Co.  3  Wall.  207;  Vallee  v.  Fleming,  19  Mo.  454;  ^Vebster 
V.  Hill,  3  Sneed,  (Tenn.)  333;  Henderson  v.  Herrod,  23  INHss.  424;  Walace 
V.  Hale,  19  Ala.  3G7;  Robinson's  Appeal,  G2  Penn.  St.  21G;  Hays'  Appeal, 
51  Penn.  St.  58;  Kohler  v.  Ball,  2  Kansas  IGO;  Gowan  v.  Jones,  10  Smede 
and  31.  164;  Ayres  v.  Baumgartuer,  15  111.  444;  Rawlings  v.  Bailey,  15  HI. 
178;  Young  v.  bowling,  15  111.  481. 

^  Baker  v.  Bradley,  23  111.  632;  Gridley  v.  Philips,  5  Kansas,  349;  Peter- 
man  V.  Watkins,  19  Ga.  153;  or  in  Georgia,  the  administrator  de  bonis  ?ion, 
may  he  ordered  by  the  same  court  granting  the  license  to  execute,  or  com- 
jilete  the  sale.  Ibid.  So,  likewise,  in  Kansas,  Gridley  v.  Philips,  5  Kansas, 
349. 


144  ^UDICTAL   AXD   EXECUTION    SALES. 

uclministrator,  or  official  capacitj',  and  not  to  the  person  of  liini 
■who  fills  the  place  of  administrator.  If  the  new  administrator 
has  doiihts,  lie  can  apply  to  the  court  for  instruction,  or  to  a 
court  of  equity  for  relief;  but  if  to  the  latter,  then  the  heirs 
must  be  made  parties.  Should  the  new  administrator,  (or 
administrator  de  hoiiis  noil)  refuse  to  proceed,  then  the  pur- 
chaser may  coerce  a  deed  i]i  chancery,  if  he  has  in  no  way  lost 
his  rif^hts  as  such. 

§  363.  On  a  sale  of  lands  of  a  decedent  by  the  administrator 
in  probate,  the  deed  to  the  i^urchaser  cannot  be  executed  by 
the  administrator  through  an  agent. ^  It  is  an  act  that  can 
only  be  j)erformed  by  an  administrator. 

§  304.  If  the  nghtful  administrator  be  within  the  probate 
jurisdictional  limits  the  court  can  enforce  the  making  of  the 
deed. 2  Ent  if  he  leave  the  State,  the  proper  course  is  to  vacate 
his  letters,  appoint  a  successor,  and  by  order  in  probate  cause 
such  successor  to  execute  the  proper  conveyance  to  complete 
the  sale.  It  is  not  within  the  jurisdiction  of  an  ordinary 
chancery  jurisdiction  to  decree  a  title.  The  sale  must  be  per- 
fected through  the  probate  court. ^ 

§  365.  Where  the  county  court  in  Virginia  was  empowered 
by  special  act  of  Assembly  to  decree  a  sale  of  a  decedent's 
lands  by  the  administrator,  and  decreed  accordingly,  it  was 
holden  that  the  deed  sliould  be  by  the  administer  as  such,  and 
not  as  a  commissioner.** 

§  366.  An  administrator  ^>r6>  tcm.  cannot  execute  a  deed  of 
conveyance  of  a  decedent's  lands  without  pro]X?r  order  and 
authority  from  the  court  especially  allowing  him  so  to  do; 
such  deed  is  inadmissible  in  evidence  and  passes  nothing-.^ 

§  367.  In  Mississippi  the  ruling  is,  that  an  administrator 
de  Jjonis  non  cannot  execute  a  deed  of  land  sold  by  his  prede- 
cessor." 

'  Gridloy  x.  Pliilips,  o  Kansas,  G4f). 

''  Ibid. 

=  Gridley  x.  Philips,  5  Kansas,  340;  Baker  v.  Bradley,  23  111.  G32 

*  Corbell  x>.  Zeluff,  12  Gratt,  22G. 

^  Robinson  x.  Martcl,  11  Texas,  140. 

*  Davis  «.  Brandon,  1  How.  (Miss.)  154. 


TIIE   DEED.  145 

§  3CS.  A  married  woman  wlio  is  a  guardian  can  convey  tlie 
estate  of  lier  ward  hy  deed,  nnder  a  judicial  sale,  without  being 
joined  by  lier  husband  in  the  deed.i  In  Missouri,  a  sale  and 
conveyance  by  one  of  two  administrators  is  good,  the  sale 
being  otherwise  regular. ^  But  the  contrary  doctrine  prevails 
in  California.^ 

II.     To  Whom  to  he  ]\Lvde. 

§  369.  Ordinarily  the  conveyance  is  to  be  made  to  the  pur- 
chaser, if  not  desired  by  him  to  be  made  to  some  one  else;  but 
in  judicial  sales,  as  the  whole  matter  remains  under  the  con- 
trol of  the  court  until  the  delivery  of  the  deed,*  and  the 
purchaser,  by  his  purchase,  becomes  a  party  to  the  proceedino-s 
and  is,  therefore,  in  court,^  the  court  has  full  power,  at  his 
request,  to  order  the  deed  to  be  made  to  another  person  as 
grantee  in  his  place  on  full  payment  of  the  purchase  money. 
A  deed  to  such  other  person,  made  under  such  sale  and  sub- 
stitution, if  otherwise  sufficient,  will  be  valid;'''  "without 
prejudice,  however,  to  any  equities,  rights,  or  liens,  which  may 
have  become  vested  before  such  assignment  of  his  bid,"^  and 
subject  to  all  equities  or  liens  which,  in  the  meantime,  may 
liave  vested  as  against  the  original  purchaser. ^ 

§  370.  So,  in  a  sale  made  by  an  administrator,  made  under 
an  order  of  court,  and  license  to  sell  real  estate  of  a  decedent, 
the  deed  may  be  made  to  the  assignee  of  the  purchaser  and 
will  bo  valid,  as  to  any  objection  on  that  account.^  Likewise 
in  cases  of  judicial  sales  generally,  i^ 

'  Palmer  v.  Oakley,  2  Doug.  (Mich.)  4;];3. 
-  Vallee  v.  Fleming,  19  Mo.  454,  404. 
3  Gregory  v.  McPlierson,  13  Cal.  5G2. 

*  Blossom  V.  U.H.  Co.  3  Wall.  207:  Deadrick  v.  Watkins,  8  Humph.  520; 
Dcadrick  v.  Smitli,  G  Humph.  138;  Requa  v.  Rhela,  2  Puige,  339. 
•■  Blossom  V.  R.  R.  Co.  3  Wall.  I!)f5,  207. 

«  Williams  v.  Harrington,  11  Ired.  GIG;  Proctor  v.  Farnum,  5  Paige,  014. 
'  Proctor  V.  Farnum,  5  Paige,  014. 
8  Ibid. 

'  Ewing  V.  Higby,  7  Ham.  178. 
'"  Voorhees  v.  The  Bank,  U.  S.  10  Pet.  478,  479. 
10 


146  JUDICIAL,   A'SB   EXECUTION    SALES. 

III.     When  to  be  Made. 

§  371.  So  soon  as  tlie  sale  is  confirmed  by  the  court  and  the 
purchaser  lias  jDcrformed  on  his  part  the  requirements  resting 
on  him  by  the  terms  of  sale  as  to  the  purchase  money,  he  then 
becomes  entitled  to  a  deed.  The  sale,  however,  in  some  cases, 
as  for  instance  sales  in  probate,  is  not  yet  completed  until  the 
deed  be  approved  by  the  court.  ^  If  the  sale  be  on  a  credit, 
then  the  right  of  the  purchaser  to  a  deed  before  full  payment 
depends  on  circumstances  and  terms  of  sale.^ 

^  372.  If  the  order  of  sale  is  to  remain  in  force  only  a 
limited  term,  then  the  deed  must  be  executed  and  delivered 
within  that  time.  Otherwise  it  will  be  void.^  But  in  Michigan 
there  is  a  contrary  ruling.'* 

§  374.     In  the  case  cited  of  J/«?/  v.  Ba7/mo?id,^  the  ques- 

'  Lischcyy.  Gardner,  3  Watts  &  Sergt.  314;  Morton  v.  Sloan,  11  Humph. 
278. 

^  Bains  v,  Morris,  4  Ired.  22. 

3  Mason  v.  Ham,  36  Maine,  573;  Macey  v.  Raymond,  9  Pick.  287;  Well- 
man  V.  Lawrence,  15  Mass.  320. 

^  Howard  v.  Moore,  2  Micli.  226. 

5  9  Pick.  285.  PerGuriam:  A  fixtal  objection  to  the  maintainance  of 
this  action  arises  out  of  the  delay  in  the  sale.  The  license  was  to  he  in 
force  one  year.  It  was  not  questioned  in  the  argument  that  if  the  land 
had  not  been  put  up  at  vendue  within  the  year  the  deed  would  have  been 
ineffectual ;  but  it  was  said  that,  as  in  popular  estimation  the  land  was 
sold  within  the  year,  the  delivery  of  the  deed  after  the  year  expired  was 
sufficient.  We  tliink  this  construction  cannot  prevail.  The  object  of  the 
Legislature  was,  that  the  sale  should  be  concluded  and  the  deed  delivered 
within  the  year.  Otherwise  there  might  be  a  complete  evasion  of  the 
statute  and  the  estate  be  kept  open  for  twenty  j^ears.  No  property  passed 
until  the  deed  was  given,  and  until  then,  in  a  legal  sense,  there  was  no 
sale.  And  though  the  popular  sense  may  be  the  true  one  where  the  act 
of  the  Legislature  does  not  relate  to  a  technical  subject,  j^et  it  being  here 
the  object  to  limit  the  time  of  sales  and  prevent  estates  from  being  kept 
open  longer  than  is  necessary,  the  legal  sense  seems  to  "be  the  proper  one 
to  be  adopted.  It  is  said,  however,  that  if  the  land  is  bid  off  within  the 
}'ear,  but  the  deed  is  not  given,  a  bill  in  equitj^  will  lie  to  enforce  a  specific 
performance  of  the  contract,  and  so  it  would  be  absurd  to  give  a  different 
construction  of  the  statute  in  a  writ  of  entry.  Our  construction  might  be 
incorrect,  if  a  bill  in  equity  would  lie  after  the  expiration  of  the  5'car. 
But  a  court  of  equity  would  not  decree  a  useless  act,  a  specific  perform- 
ance where  the  party  could  not  perform.    If  the  statute  had  said  expressly 


THE   DEI^D.  147 

tion  as  to  when  the  sale  is  completed  arose  incidentally  in 
regard  to  an  administrator's  sale.  The  statute  of  Massachu- 
t=etts  required  the  sale  to  he  made  within  one  year  from  the 
granting  of  the  order  of  sale.  The  deed  was  delivered  after 
the  year  had  expired.  Tlie  court  held  that  the  power  to  make 
it  had  expired;  that  the  sale  was  not  complete  until  the 
deli  veering  of  the  deed,  and  that  as  it  was  not  delivered  within 
the  year,  the  proceedings  were  void,  and  that  the  grantee  took 
nothing  under  the  deed.  The  statute  of  Massachusetts  has 
since  been  altered  by  the  act  of  1840  in  respect  to  the  time  of 
completing  the  sale.  But  the  principal  in  that  case  adjudged 
that  the  sale  is  only  completed  by  delivery  of  the  deed,  is  not 
affected  thereby. 

ly.     Its  Eecitals  axd  Descriptioxs. 

§  375.  Mere  misrecitals  in  the  deed  as  to  the  order  of  sale 
or  previous  proceedings  will  not  invalidate  the  conveyance  and 
title,  if  enough  appears  from  the  whole  record,  deed,  and  pro- 
ceedings to  clearly  identify  the  real  case  and  show  the  true  facts 
and  circumstances  under  which  the  deed  is  made.  ^ 

§  37G.  'Nov  will  the  misnomer  of  an  executor  or  executrix, 
who  makes  the  sale,  by  describing  him  or  her  as  administrator 
or  administratrix.  2 

§  377.  In  Iowa,  the  term  administrator  is,  by  statute,  made 
to  mean  as  well  executor  as  administrator. ^ 

§  378.  The  necessity  of  reciting  the  order  or  decree  in  the 
deed,  depends  mainly  on  the  statutes  and  local  practice  in  the 
several  States.     In  New  York,  Illinois,  and  others  of  the  States, 

tliat  llie  deed  should  be  given  within  the  j^ear,  a  decree  of  specific  per- 
formance after  the  year  would  be  nugatory;  and  so  tlie  case  depends  on 
the  construction  of  the  statute.  Nor  is  there  any  need  of  allowing  more 
than  a  year  for  the  delivery  of  the  deed  If  the  party  who  bids  off  the 
land  demands  his  deed  within  the  year  and  it  is  refused,  he  has  his  action 
at  law  for  damages,  and  that  is  sufficient 

'  Thomas  v.  LaBarron,  8  Met.  (Ky.)  355 ;  Shelden  v.  AVriglit,  1  Selden 
(X.  Y.)  497;  James  v.  Taylor,  7  Texas,  2-iO;  Saltonstall  c.  Rile}',  28  Ala. 
164. 

-  Cooper  V.  Robinson,  2  Cush.  184. 

^  Revision  of  18G0,  Sec.  233. 


148  JUDICIAL  AKD   EXECUTION    SALES. 

it  is  held  essential  to  tlic  validity  of  the  deed. i  Wliilst  in 
Georgia,  Texas,  and  some  others  of  the  States,  it  is  holdeii 
sufficient  if  the  order  be  referred  to  and  identified.  ^  Doubtless 
the  safer  course  is  to  i-ecite  the  order  or  decree  in  the  deed  at 
length  and  with  accnracy.  After  confirmation  it  is  held  that 
prior  defects  as  to  description  are  remedied  if  there  be  an 
accurate  description  in  the  sale,  order  of  confirmation,  and  the 
deed. 3 

Y.     What  I'Asses  by  rr. 

§  379.  However  the  proceedings  and  deed  may  be  as  to 
regularity  and  sufiiciency  in  other  respects,  yet  the  deed  can 
only  pass  the  title  to  such  property  as  is  authorized  to  be  sold 
by  the  decree* 

§  3S0.  A  sale  of  a  tract  of  land  generally,  by  the  guardian 
of  one  only  of  two  owners,  on  a  decree  made  in  proceedings 
in  which  no  reference  is  made  to  the  other  owners  or  his  rights, 
and  to  which  proceedings  he  was  not  a  party,  carries  to  the 
purchaser  only  the  title  of  such  guardian's  ward  and  docs  not 
affect  the  interests  of  the  other  ouTiers.^ 

§  381.  The  deed,  under  a  mortgage  foreclosure  and  sale, 
carries  the  title  and  entire  interest  of  both  mortsfaijor  and 
mortgagee.^  But  not  against  subsisting  equities  of  those  not 
made  parties  to  the  proceeding.'' 

§  382.  It  is  a  well  establislied  principle  that  in  adversary 
proceedings,  the  deed  under  a  judicial  sale  cames  title  only  as 
against  parties  to  the  suit,  and  that  "though  a  purchaser  dis- 
covering a  defective  title  at  a  proj^er  time,  might  be  relieved 
from  his  pureliase,"  yet,  he  cannot  "be  permitted,  whilst  hold- 
ing on  to  his  purchase,  to  insist  upon  having  his  title  perfected 

'  Atkins  V.  Kinnon,  20  Wend.  241 ;  Doc  t.  Williams,  1  Scam.  323. 
-  Brown  v.  Eedwinc,  IG  Ga.  07. 
s  Williams  v.  Harrington,  11  Ired.  Gl(3. 

^  Shrivcr  v.  Lynn,  2  How.  43;   Neil  v.  Huglics,  10  G.  and  J.  7;  Ii3-an  v. 
Box.  25  Barb.  440. 
*  Bryan  v.  Manning,  G  .Tones  (N.  C.)  334. 
6  Carter  v.  Walker,^2  Ohio  St.  339. 
■>  Haynes  t.  Beach,  3  John?.  Ch.  450. 


THE   DEED.  149 

by  tlie  application  of  the  ])roceeds  of  tlie  sale  to  the  extinguish- 
ment of  the  ckiras  of  incumbrances  not  parties  to  the  suit."i 
Such  is  tlie  ruling  and  the  language  of  the  Maryland  High 
Court  of  Chancery  in  Duval  v.  Speed,  1  Md.  Ch.  Decis.  235. 

§  3S3.  The  widow's  dower  is  not  ordinarily  affected  by  an 
administrator's  or  guardian's  sale  in  probate,  although  it 
appear  that  the  order  was  made  on  her  application,  and  no 
express  reservation  of  dower  be  made  in  the  sale  or  deed.^  In 
Missouri,  however,  under  the  code  of  1825,  it  was  otherwise.^ 
But  if  she  sell  and  convey  with  warranty,  she  will,  by  her  deed, 
though  made  as  administrator  or  as  guardian  be  "  completely 
estoi3]3ed"  from  claim  of  dower. "^ 

§  384.  In  New  Hampshire  an  administrator  of  an  insolvent 
estate  is  invested  by  the  statute  with  a  special  and  limited 
estate  in  the  realty.  The  right  to  the  rents  and  profits,  and  to 
possession  until  administration  be  closed  or  the  land  be  sold 
by  order  of  court.  In  Bergin  v  McFarland,  in  that  State,  it 
is  liolden  that  a  deed  of  the  administrator  so  imperfect  in 
itself,  or  in  the  proceedings  under  which  made,  that  it  will  be 
inoperative  to  carry  the  fee  as  against  the  heirs,  will  neverthe- 
less protect  the  grantee  as  against  the  heirs  during  such  time 
as  the  estate  is  not  fully  administered,  for  which  time  the 
administrator,  if  no  deed  were  made,  would  be  entitled  to  the 
possession,  the  rents,  and  the  profits.^ 

§  385.  In  Pennsylvania  it  is  held  that  "  nothing  can  be  sold 
(on  sales  in  partition)  but  the  title,  which  is  vested  in  the 
parties  to  the  proceedings."*' 

§  386.  A  mortgage  made  by  a  coparcener,  pending  proceed- 
ings for  partition,  is  overreached  by  the  proceedings  in  parti- 
tion, which  vest  the  entire  estate  in  the  purchaser  at  partition 
sale  unencumbered  by  the  mortgage. ' 

^  Duval  V.  Speed,  1  Md.  Ch.  Decis.  229,  235 ;    Klioler  v.  Klioler,  1  Edw. 
Ch.  577 ;  Darwin  v.  Hatfield,  4  Sandf.  468 ;  Carter  v.  Walker,  2  Ohio  St.  339. 
2  Jones  V.  Ilallopclter,  10  S.  and  R.  320;  Owens  v.  Slater,  20  Ala.  547. 
=  Mount  V.  Vallee,  19  Mo.  G21. 
*  McGee  v.  Mellon,  23  Miss.  585. 
'■"  Bergin  v.  McFarland,  G  Foster,  (K  11.)  533. 
«  Allen  i\  Gault,  27  Penn.  St.  473. 
■"  Sears  v.  Hyer,  1  Paige,  483 


150  JUDICIAL   AXD   EXECUTION   SALES. 

§  387.  "Wliere  by  law,  lands  are  to  be  valued  before  selling, 
in  judicial  or  execution  sales,  tlie  growing  crops  thereon 
situated  do  not  pass  to  the  piu'chaser  by  the  sale  and  deed. 
The  reason  given  is  that  the  valuation  is  but  of  the  lands,  and 
that  they  must  sell  for  a  certain  proportion  of  their  value  or 
not  at  all.  Thus,  in  Ohio,  wliere  such  is  the  law,  requiring 
lands  about  to  be  sold  on  execution,  or  in  proceedings  in  par- 
tition, it  is  settled  that  on  a  sale  and  deed  in  partition  of  lands 
in  that  State,  having  at  the  time  of  sale  growing  crops  thereon 
such  crops  do  not  pass  to  the  purchaser.  ^ 

§  388.  And  so  the  emblements  or  growing  croj)s  of  a  tenant 
in  possession  of  mortgaged  premises  under  the  mortgagor  do 
not,  uj)on  general  principles,  pass  to  the  purchasers  at  a  judi- 
cial sale  on  foreclosure  of  the  mortgage.  "  Tlie  annual  crops 
are  saved  to  the  tenant  under  the  common  iiile  relating  to 
emblements,  because  the  termination  of  the  lease  is  uncertain. 
The  elder  jurists  find  abundant  reason  for  the  doctrine,  in  the 
protection  the  law  owes  to  agriculture."  Such  is  the  rule  in 
reference  to  a  tenant  under  'the  mortgagor,  l)ona  fide  such, 
irrespective  of  appraisement  laws.  Tlie  courts  regard  the 
growing  crops  as  personality.- 

§  389.  But  although  (as  we  have  just  seen)  the  emblements 
do  not,  as  a  general  rule,  pass  to  the  purchaser  at  judicial  (or 
at  execution)  sale;  and  although  the  sale  is  not  completed  un- 
til the  execution  and  delivery  of  the  deed:^ 

§  390.  Yet,  the  occupying  tenant  or  debtor  in  possession, 
cannot  prolong  his  occupancy  or  have  the  right  to  gather  in 
the  fruits  of  his  labor  by  putting  in  a  crop,  or  seeds,  after  the 
sale  at  the  biddings  and  before  confirmation  and  conveyance 
of  the  jDremises,  unless  the  same  be  put  in  by  consent  of  tlie 
purchaser.  In  Parlcer  v.  Storts,  involving  a  judicial  sale  on 
mortgage  foreclosure,  the  court  say:  —  "His  own  unauthorized 
acts  after  the  sale  cannot  be  allowed  to  impair  the  rights  of  the 
purchaser,  and  mast  be  done  at  his  own  peril,"     Such  is  the 

1  House  «.  Showaltcr,  10  Ohio  St.  124.  127 ;  Parker  v.  Storts,  15  Ohio  St. 
351,  355 ;  Jones  v.  Thomas,  8  Blackf.  428. 

"^  4  Kent,  Com.  73;  Casselly  ».  Rhodes,  12  Ohio,  88. 

"  Lisehey  v.  Gardner,  3  Watts.  &  Sergt.  314;  Erb  v.  Erb,  9  Watts.  &  Scrgt. 
147;  Parker  v.  Storts,  15  Ohio  St.  351. 


THE   DEED.  151 

doctrine  liolden  in  Parher  v.  Starts.)  in  Oliio,  wherein  the  court 
SHj,  in  reference  to  past  decisions  in  that  state  on  the  subject, 
tliat  they  are  '' Avholly  unaffected  by  the  opinion  "  in  this  case 
of  Parker  v.  Starts.  ^ 

"An  irrcgukr  or  void  judicial  sale"  say  the  United  States 
supreme  court  in  Brolst  v.  Brock,  "  made  at  the  instance  of 
tlie  mortgagee,  j^asscs  to  the  purchaser  all  the  rights  the  mort- 
gagee, as  such,  had." 

§  391.  There  being  no  service  on  the  mortgagor  in  the  case 
above  cited,  the  judgment  was  holden  to  be  void  as  to  him,  and 
therefore  it  did  not  cut  off  his  equity  of  redemption,  nor  did 
the  sale.  Had  the  judgment  been  authorized  by  service  and 
erroneously  entered,  yet  it  Avould  have  been  valid  until  reversed 
or  set  aside,  and. a  sale  under  it  would  have  carried  the  full  title 
of  both  mortgagor  and  mortgagee,  except  the  equity  of  redemp- 
tion of  the  mortgagor.  But  being  made  at  the  instance  of  the 
jliortgagee  and  purporting  to  be  a  sale  of  the  lands  and  whole 
interest  covered  by  his  mortgage,  the  mortgagee  is  estoped  to 
deny  that  all  his  rights  passed  by  the  sale;  and  the  purchaser 
having  paid  the  mortgage  debt,  is  subrogated  to  the  mortga- 
gee's rights.  3 

§  392.  In  making  title  under  an  administrator's  sale  of 
lands  by  virtue  of  a  decree  in  probate,  the  appointment  or 
autiiority  of  the  administrator  to  act  as  such  must  be  shown. 
"  Tiie  whole  record  from  and  including  the  appointment  of  the 
administrator,  down  to  and  inclnding  the  sale  of  the  real  estate 
is  but  one  continuous  record;  audit  must  all  be  considered  as 
before  the  court  and  the  parties  upon  application  to  sell  and 
confirm  the  sale  of  the  real  estate." ^ 

§  393.  And  where  the  aj^pointuient  of  the  administrator  is 
a  void  act,  so  is  the  sale  of  real  estate  that  he  may  make,  like- 
wise void  and  of  no  effect.  This  too,  notwithstanding  a  decree 
autlioriziug  the  sale  and  a  subsequent  order  of  confirmation 
thereof.'* 

'  Parker  «.  Storts,  15  Ohio  St.  351,  35. 

-  Brobst  i\  Brock,  10  Wall.  519,  534;  Gibert  v.  Coolcj',  Walker  Cb.  494; 
Jackson  v.  Brown,  7  Cow.  13. 

=■  Frederick  «.  Pacquctte,  19  Wis.  541 ;  Sitzman  v.  Pacquette,  13  Wis.  291. 

*  Frederick  v.  Pacquette.  19  Wis.  541 ;  Sitzman  v.  Pacquette,  13  Wis.  291. 


CHAPTEE   X. 

SETTING  ASIDE   SALE. 

I.  The  Power  to  Set  Aside  Sales. 

II.  For  Inadequacy  of  Price. 

III.  For  Irregularity. 

IV.  For  Mistakes  and  for  Misrepresentatiok. 
V.  For  Sltiprise. 

VI.    For  Fraud. 

VII.    For  Reversal  of  the  Decree. 
VIII.    Re-sale. 

I.     The  PowiiK  TO  Set  Aside  Sales. 

§  3'9J:.  Courts  of  equity  and  courts  exercising  equity  powers 
over  particular  subjects  liave  a  "  general  supervision  over  tlieir 
process,  and  more  especially  over  the  particular  sales  ordered 
by  their  decrees  and  made  by  their  special  agents  or  commis- 
sioners," which  supervision  is  effected  sometimes  by  bill  or  by 
petition  and  sometimes  by  raotion,i  or  by  the  court  itself,  on 

'  Coffey  «.  Coffey,  10  111.  141;  Deadrick  v.  Smith,  G  Humph.  138;  King  v. 
Piatt,  37  N.  Y.  155;  Laight  v.  Pell,  1  Edw.  Ch.  577;  Yates  -».  Woodruff,  4 
Edw.  Ch.  703.  In  the  case  of  Coffey  v.  Coffey,  Scates,  Justice,  delivering 
the  opinion  of  the  court,  says :  "  The  only  question  of  any  importance  in 
the  case  is,  whether  there  is  such  unfairness  and  fraud  in  the  sale  as  to 
Avarrant  the  decree  setting  it  aside.  Of  this  we  have  no  doubt.  The 
plaintiff,  with  liis  brothers  and  sisters,  had,  or  pretended  to  have,  a  claim 
of  title  to  one  of  these  tracts,  adverse  to  petitioners.  Under  these  circum- 
stances, if  he  desired  to  become  a  bidder,  it  was  essential  to  fairness 
towards  petitioner  that  he  should  conceal  or  forbear  to  assert  his  adverse 
claim,  whatever  consequence  might  result  therefrom  to  his  interest.  It  is 
not  competent  for  him  to  assert  his  claim  to  the  premises  by  a  public 
announcement  at  the  biddings,  with  a  threat  to  litigate  it  with  any  pur. 
chaser,  and  then  enter  into  competition  in  the  biddings  and  purchase  at 
an  under  value,  occasioned  by  the  depreciation  his  own  conduct  had  pro- 
duced. If  it  were  essential  for  the  protection  of  his  claims  to  give  notice 
and  make  it  known  at  the  sale,  he  thereby  disqualified  himself  to  bid  or 
become  a  purchaser  of  this  adverse  title  at  such  sale.  He  shall  not  be 
allowed  to  depreciate  or  destroy  the  value  of  the  land  b}^  denying  the  title, 
then  buy  it  at  a  depreciation  thus  produced,  and  claim  to  be  a  fair  pur- 

(152) 


SETTING   ASIDE   Sx\.LE.  153 

its  o'wn  motion,  as  universal  guardian  of  all  infants,  if  tlie 

chaser.  Such  is  proven  to  have  been  his  conduct  in  this  case.  A  witness 
desired  to  purcliase  the  tract  claimed,  and  would  have  paid  more  for  it 
than  plaintiff  gave  had  not  this  claim  been  made.  So  he  would  for  the 
otlicr,  to  which  no  claim  was  made,  if  he  could  have  purchased  with  it 
the  piece  claimed.  Its  value  depended  in  part  upon  its  connection  with 
tliat  piece.  Another  witness,  though  he  had  no  money  to  bid,  yet  desired 
the  land,  and  actually  purchased  the  same  of  plaintiff  before  he  bid  on  it 
at  an  advance  of  some  five  hundred  dollars,  on  time.  These  facts  show 
such  fraud  upon  and  injury  to  the  rights  and  interests  of  defendant  as  call 
for  correction  from  the  court,  in  the  exercise  of  a  sound  legal  discretion 
of  its  powers  of  disapproving  and  setting  aside  sales  under  its  orders; 
and  we  think  that  discretion  properly  exercised  in  this  case.  The  objec- 
tion taken  to  the  proceedings  by  motion  is  not  sustainable.  The  case  is 
essentially  different  from  the  case  of  Day  «.  Grayham,  1  Gilm.  435.  Courts 
of  law  have  a  supervision  over  the  execution  of  their  process,  and  yet  maj^ 
not,  as  in  that  case,  properly  afford  relief  by  setting  aside  sales  made 
under  it,  but  leave  the  party  to  his  bill  in  equity.  Courts  of  equity  have 
a  like  general  supervision  over  their  process,  and  more  especially  over  tiie 
particular  sales  ordered  by  their  decrees  and  made  by  their  special  agents 
or  commissioners.  So  far  is  this  carried  under  the  English  practice  that 
the  sale,  until  confirmation  by  the  Chancellor,  is  treated  merely  as  a  bid, 
and  subject  to  a  proposition  of  advance.  6  Vessey,  513;  8  ibid,  214.  We 
have  not  adopted  the  rule  to  this  extent  (15  111.  4-17,)  but  the  power,  right, 
and  duty  of  the  court  to  supervise,  protect,  and  preserve  the  parties  from 
all  fraud,  unfairness,  and  imposition,  is  of  universal  application  here. 
Ayres  v,  Baumgartner,  15  111.  447;  2  Paige,  99,339;  3  ibid,  97;  9  ibid,  259; 
1  Edw.  Ch.  577;  5  Humph.  355;  4  ibid,  372;  2  B.  Monroe,  497;  3  Dana, 
G20;  1  Smede  &  Marsh,  Ch.  522;  23  Miss.  445.  And  this  is  w^ell  put  in 
Cassamajor  r.  Stode,  1  Sim.  Rev.  Sta.  381,  (1  Eng.  Ch.  382,)  upon  the  ground 
that  the  purchaser  does,  by  the  act  of  purchase  under  a  decree,  submit 
liimself  to  the  jurisdiction  of  the  court  as  to  all  matters  connected  with 
that  character.  This  is  sometimes  done  by  bill,  as  in  Bacon  et  al.  •».  Conn, 
1  Smede  &  Marsh,  Ch.  348;  by  petition,  as  in  Henderson  v.  Harrodetal,  23 
Miss.  451;  2  Paige,  100;  9  ibid,  260;  3  ibid,  94;  15111. 144;  and  sometimes 
by  motion,  3  Dana,  015;  2  B.  Monroe,  408;  5  Humph.  355;  2  Paige,  240;  1 
Edw.  Ch.  578 ;  4  ibid,  703.  The  case  before  us  is  a  proper  one  for  a  motion. 
The  sale  by  plaintiff  to  the  witness  Reynolds,  before  the  bidding,  docs  not 
present  the  case  of  an  innocent  purchaser  who  is  entitled  to  be  made  a 
party  by  bill  or  petition,  but  is  a  part  of  the  evidence  of  the  fraudulent 
conduct  of  plaintiff  in  forestalling  competition.  Decree  (setting  aside 
sale)  affirmed."  Though  the  English  practice  of  opening  the  biddings 
for  reception  of  a  higher  bid,  when  offered,  does  not  prevail  in  Illinois, 
yet  it  is  by  no  means  unusual  in  the  courts  of  some  others  of  the  states. 
Childress  v.  Hurst,  2  Swan  (Tenn.)  487;  Hay's  Appeal,  51  Penn.  St.  58; 
Wright  V.  Cautzon,  31  Miss.  (2  George)  514." 


154  JUDICIAL   AND   EXECUTION   SALES. 

interest  of  infants  demand  it.^  They  may  reject,  set  aside,  or 
confirm  sales,  and  order  resales,  at  discretion,  as  equity  and  the 
ends  of  justice  may  require. ^ 

§  395.  The  grounds  on  which  sales  are  usually  sought  to 
be  set  aside  are,  inadequacy  of  price;  irregularity;  mistake  or 
misapprehension;  surprise;  frauds;  and  for  reversal  of  decree 
of  sale.     These  will  he  considered  in  their  order, 

§  39G.  In  Deadrick  v.  Smith^  the  Supreme  Court  of  Ten- 
nessee hold  the  following  language  as  to  the  power  of  courts 
over  their  o^vn  judgments,  decrees,  and  sales:  "Every  court 
must  have  an  inherent  power  of  enforcing  its  judgments  and 
decrees;  and  surely  tp  no  tribunal  can  this  power  more  prop- 
erly belong  than  to  the  chancery  court.  It  has  under  its  control 
all  the  sales  made  by  its  order  until  final  disposition  is  made 
of  the  cause.  It  can  set  aside  the  sale  altogether,  or  open  the 
biddings,  or  make  any  other  order  that  may  be  necessary  for 
the  enforcement  of  the  decree."  The  court  add  that  the  pur- 
chaser is  a  party  to  the  proceedings ;  must  have  a  final  order 
to  make  his  purchase  effectual,  and  is  under  the  control  of  the 
court  for  enforcement  of  the  purchase  against  him. 

II.     For  Inadequacy  of  Peice. 

§  307.  If  there  be  no  fact  or  circumstance  relied  on  to  set 
a  sale  aside  but  inadequacy  of  price,  then  the  inadequacy  must 
be  such  as  in  itself  to  raise  the  presum23tion  of  fraud,  or  else 
the  sale  will  not  be  disturbed.  ^ 

§  398.  But  if  in  addition  to  such  inadequacy  there  be  any 
appearance  of  unfairness,  or  any  circumstance,  accident,  or 

'  Lefevre  v.  Lar.way,  23  Barb.  1G7;  2  Story,  Eq.  Jur.  Sec.  1334. 

-  Deadrick  v.  Smith,  G  Humph.  138;  Stephens  v.  McGruder,  31  Md.  IGS; 
Hay's  Appeal,  51  Pena.  St.  58 ;  King  v.  Piatt,  37  N.  Y.  155. 

2  G  Humph.  14G. 

*  West  ».  Davis,  4  McLean,  241;  Cohen  «.  Wagner,  G  Gill.  236;  Ashby  v. 
Cowell,  1  Busby,  Eq.  158 ;  Lefevre  v.  Laraway,  22  Barb.  1G7 ;  Strong  v. 
Caton,  1  Wis.  471;  Hart  v.  Blight,  3  Mon.  273;  Reed  v.  Brooks,  3  Litt.  127, 
Little  V.  Luntz,  2  Ala.  256;  Girt  v.  Frazier,  3  Litt.  118;  Am.  Ins.  Co.  r. 
Oakly,  9  Paige.  259 ;  Bank  of  Alexandria  i).  Taylor,  5  Cranch,  C.  C.  314, 
Furgus  V.  Woodworth,  44  111.  374;  Trip  v.  Cook,  26  Wend.  143;  Strong  v. 
Caton.  1  Wis.  471. 


SEITIXG   ASroE    SALE.  155 

occurrence  in  relation  to  the  sale  of  a  character  tending  to 
cause  such  inadequacy,  then  the  sale  will  be  set  aside  ;i  but 
inadequacy  of  price  is  still  the  main  ground  of  disturbing  the 
sale,  2  for  if  the  price  were  full  value,  or  even  a  j)assable  one, 
then  the  objectionable  facts  or  circumstances  have  worked  no 
evil. 

§  390.  In  the  leading  case  here  cited  under  this  head,  his 
honor  Judge  McLean  holds  the  following  language  on  the 
subject  of  setting  aside  judicial  sales  for  mere  inadequacy  of 
price:  "There  does  not  appear  to  be,  in  the  present  case,  any 
irregularity,  mistake,  or  fraud.  Tlie  only  objection  urged  is, 
that  the  property  sold  for  less  than  its  value.  "We  cannot  sav 
that  this  inadequacy  is  so  striking  as  to  authorize  the  setting 
aside  of  the  sale.^ 

§  400.  In  the  case  of  Little  v.  Luntz,^  the  Supreme  Court 
of  Alabam.a  hold  the  following  language  on  the  same  subject: 
"  TVe  are  therefore  of  opinion,  that  when  a  stranger  is  the  pur- 
chaser at  a  mortgage  sale,  it  will  not  be  set  aside  for  mere 
inadequacy  of  price,  no  matter  how  gross,  unless  there  is  some 
tmfair  practice  at  the  sale,  or  unless  those  interested  are  sur- 
prised without  fault  or  negligence  on  their  part;  and  in  no  case 
of  this  descrijDtion  after  a  confirmation,  unless  fraud  cau  be 
imputed  to  the  purchaser  which  was  unknown  to  those  inter- 
ested at  the  time  of  confirmatiou  of  the  sale." 

§  401.  It  may  be  accepted  as  a  general  rule,  that  when  the 
cause  alleged  is  fraud,  the  application  to  set  aside,  if  after  con- 
firmation, then  the  court  must  be  satisfied  that  the  fraud  was 
unknown  to  those  complaining  at  the  time  of  confirmation. 

§  402.  The  prevalence,  at  the  time  of  sale,  of  an  infectious 
disease,  to  such  extent  as  to  remove  many  peoj)le,  susj^end 
business,  and  prevent  the  ordinary  ^probability  of  a  reasonable 

'  Cohen  v.  Wagner,  6  Gill,  238;  Gist  v.  Fraziei-,  2  Litt.  118;  i^Iay  v.  May, 
11  Paige,  201;  Bank  of  Alexandria  v.  Taylor,  5  Craucli,  C.  C.  314. 

'  Cohen  v.  Wagner,  G  Gill.  230. 

'  West  V.  Davis,  4  McLean,  241,  242.  See  also  Trip  v.  Cook,  2G  Wcnil. 
142. 

4  2  Ala.  2G0,  261 ;  Am.  Ins.  «.  Oakley,  9  Paige,  239 ;  King  v.  I^Iasteraon, 
16  N.  Y.  174. 


156  JUDICIAL   AJSTD   EXECUTION   SALES. 

competition  at  the  sale,  will,  in  connection  witli  inadequacy  of 
price,  be  cause  for  setting  tlie  sale  aside,  and  for  ordering  a  re- 
sale. ^ 

III.     Foe  Irbegulaeity 

§  403.  A  judicial  sale  is  made  under  tlie  order  or  decree  of 
tliG  court  and  by  virtue  thereof.  The  person  conducting  it 
should  be  clothed  with  a  copy  of  the  order  or  decree,  duly 
authenticated,  designating  the  land  to  be  sold.  Though  sales 
otherwise  properly  made,  will  not  be  adjudged  void  for  reason 
of  such  order  not  having  issued,  if  such  sales  are  made  in  con- 
formity to  the  record  of  the  order  ;2  yet  if  the  order  or  decree 
be  to  sell  on  receiving  the  order,  than  a  sale  on  receipt  of  an 
informal  order  which  omits  the  description  of  the  land  and  was 
not  directed  to  any  one,  though  not  actually  void,  will  be  set 
aside  for  irregularity  on  j)roper  application.  ^ 

§  404.  Insufficiency  of  description  and  inadequacy  of  2:)rice 
combined,  will  be  cause  for  setting  a  sale  aside.  ^ 

§  405.  So  for  irregularity,  when  made  after  an  appeal  is 
taken  and  ajDpeal  bond  filed. ^ 

§  40G.  Likewise  for  any  misunderstanding  resulting  in 
inadequacy  of  price.*' 

§  407.  So,  also,  if  made  by  a  different  master  than  the  one 
mentioned  in  the  decree.' 

§  408.  So  a  mortgage  sale  will  be  set  aside  on  bill  of  review 
if  the  mortgagor  die  during  suit  and  the  heirs  be  not  made 
parties  and  there  also  be  junior  mortgagees  who  were  not 
parties.^ 

§  409.     And  a  sale  made  at  an  improj^er  time,  or  under  any 

'  Littell  V.  Luntz,  2  Ala.  25G. 

2Rlionemus  i\  Corwin,  9  Ohio  St.  3G6;  Ins.  Co.  v.  Ilalleck,  G  Wall. 
55G. 

3  Rlionemus  v.  Corwin,  9  Ohio  St.  36G. 

4  Kauffman  v.  Walker,  9  Md.  229. 

"  Chesapeake  Bank  v.  McCleHand,  1  Md".  Ch.  Dccis.  328. 
<=  Latrobe  v.  Hesbert,  3  Md.  Ch.  Decis.  375. 
'  Yates  1).  Woodruff,  4  Edw.  Ch.  700. 
8  Shriveley  v.  Jones,  G  B.  3Iou.  274. 


SFfTING   ASIDE   SALE.  loT 

other  circumstances  tlian  tend  to  render  it  inequitable,  will  be 
set  aside  to  protect  the  rights  of  parties  not  in  fault,  i 

§  410.  But  a  sale  will  not  ordinarily  be  set  aside,  after  con- 
firmation and  distribution  of  the  proceeds.  ^ 

§  411.  Likewise  a  mortgage  sale  for  a  price  greatly  inade- 
quate and  much  less  than  the  mortgage  debt,  will  be  set  aside 
if  made  w^ithout  the  knowledge  of  the  creditor.  ^ 

§  412.  A  sale  made  on  a  different  day  than  the  one  stated 
in  the  notice  of  sale  is  void  and  should  be  set  aside. ^ 

§  413.  So  if  the  property  be  purchased  by  the  person  con- 
ducting the  sale,  if  so  purchased  wdthout  leave  of  the  court,  it 
is  such  an  irregularity,  aside  from  the  question  of  fraud,  as 
will  cause  the  sale  to  be  set  aside.  ^ 

§  414.  In  Michaucl  v.  Girod,  the  Supreme  Court  of  the 
United  States  review  the  whole  subject  of  purchases  by  trustees 
and  others  at  their  own  sales,  and  hold  such  to  be  in  all  cases 
void.'' 

§  415.  Under  the  statute  in  Illinois,  if  the  petition  of  the 
guardian  for  sale  of  the  ward's  lands  fail  to  state  the  ward's 
residence,  and  to  make  a  proper  case  for  decree,  a  sale  made  in 
proceedings  thereon,  will,  for  such  irregularity,  be  set  aside.'' 

§  416.     So  if,  for  reasons  not  his  fault,  a  mortgagor  ftiil  to 
attend  the  sale,  and  the  mortgagee  buy  in  the  land  at  a  greatly 
inadequate  price,  the  sale  will  be  set  aside, ^  but  not  for  inade- 
.  quacy  alone.  ^ 

§  417.     For  any  negligence  or  mistake  of  the  officer  selling 

•  Brown  v.  Frost,  10  Paige,  243;  Collier  x.  Whipple,  13  Wend.  224;  Kin- 
X.  Piatt.  39  N.  Y.  155. 

-  Stiner's  Appeal,  5G  Peiin.  St.  9. 

3  May  v.  May,  11  Paigey^Ol. 

"  Miller  v.  Hull,  4  Denio.  104. 

5  Blood  x.  Hayman,  13  Met.  231;  Man  x.  McDonald,  10  Humph.  275 ; 
Hoskins  x.  Wilson,  4  Dev.  and  B.  243;  Scott  x.  Freeland,  7  S.  and  M.  409 ; 
Worthy  x.  Johnson,  8  Ga.  23G ;  SIuiav  v.  Swift,  1  Ind.  565 ;  Michoud  x.  Girod, 
4  How.  503,  553. 

*  See  ante,  p.  5  n.  3. 

'■  Loyd  X.  Malone,  23  111.  43,  47. 
^  Tripp  V.  Cook,  26  Weed,  143. 

^  Tripp  V.  Cook,  20  Wend.  143;  Cohen  v.  Wagner,  G  Gill,  236;  Wcstovcr 
t'.  Davis,  4  McLean,  241,212. 


loS  JUDICIAL   AXD   EXECUTION   SALES. 

resulting  iu  an  injury  to  tlie  parties  in  interest  tlic  sale  will  be 
set  aside.  1 

§  418.  A  sale  made  on  application  of  tlie  administrator 
alone  where  the  law  required  the  heirs  or  others  to  join  in  such 
application  is  irregular  and  will  be  set  aside,  and  if  allowed  te 
remain,  it  is  void.^ 

§  419.  And  a  sale  of  land  a  second  time  by  the  same  admin- 
istrator will  be  set  aside  at  the  personal  cost  of  such  adminis- 
trator. 3 

§  420.  So  a  sale  of  lands  on  a  mortgage  decree,  when  the 
mortgage  of  a  minor's  lands  was  made  by  his  guardian,  will 
be  set  aside  if  a  full  defense  be  not  made  by  the  guardian  to 
test  the  validity  of  the  mortgage.* 

lY.     For  Mistake  and  Misappbehension. 

§  421.  A  sale  will  be  set  aside  for  misapprehension  caused 
by  a  purchaser  or  others  interested  in  the  sale,  or  by  the  per- 
son conducting  it.  ^  So  likewise  if  the  auctioneer,  not  hearing 
a  higher  bid,  strike  off  the  property  to  a  lower  bidder.*'  So  if 
the  property  of  infants  be  sacrificed  by  the  neglect,  fraud  or 
misapi)rehension  of  their  guardian,  they  will  be  relieved  by 
setting  aside  the  sale  and  by  a  re-sale.''^  The  order  of  re-sale 
may  be  made  on  the  court's  own  motion,  as  guardian  of  all 
infants.  ^ 

Y.     FoK  Sdkpkise. 

§  422.  Sales  of  real  estate  under  orders  and  decrees  will  be 
set  aside  for  surprise  when  an  injury  or  an  unfair  advantage 
result  therefrom. 

»  Am.  Ins.  Co.  v.  Oakley,  9  Paige,  259 ;  King  v.  Piatt,  37  N.  Y.  155. 

'  Miller  V.  Miller,  10  Texas,  319. 

=  Hunt  V.  Norton,  12  Texas,  285. 

4  Curtis  V.  Ballagh,  4  Edw.  Ch.  635. 

*  Laigbt «.  Pell,  37  N.  Y.  577,  578;  Lefcvrc  v.  Laraway,  22  Barb.  167; 
Anderson  v.  Foulk,  2  Har.  &  G.  34G;  Strong  v.  Caton,  1  Wis.  471 ;  Gordon 
v.  Sims,  2  McCord,  Ch.  157;  Brown  v.  Gilmor,  8  Md.  322;  Veeder  v.  Fonda, 
3  Paige,  Ch.  97. 

6  Gordon  v.  Sims,  2  McCord,  Ch.  159;  Cohen  v.  Wagner,  6  Gill.  236. 

'  Lefevre  v.  Laraway,  22  Barb.  167 ;  Curtis  v.  Ballagh,  4  Edw.  Ch.  635. 

8  Lefevre  v.  Larawaj',  22  Barb.  167. 


SETTING    ASIDE   SALE.  159 

§  423.  If  a  complainant  in  a  decree  give  such  assurances 
of  postponement  or  delay  of  sale,  (tliougli  not  witli  intent  to 
deceive)  as  induces  the  debtor  without  other  negligence  on  his 
part  to  omit  raising  means  for  the  j)resent  to  meet  the  debt, 
and  a  sale  be  made  for  a  price  greatly  inadequate,  it  will  be  set 
aside  for  surprise  and  a  re-sale  will  be  ordered.  ^  But  not  after 
long  or  unreasonable  delay  in  making  the  application,  and  when 
other  parties  have  acquired  an  interest  in  the  pro2:>erty  under 
the  sale.  2 

§  424.  But  a  sale  ought  not  to  be  set  aside  and  a  re-sale 
ordered  for  the  benefit  of  those  interested  in  the  fund  arising 
from  the  sale  merely  to  j)rotect  them,  they  being  adults,  from 
the  consequences  of  their  ovm.  negligence  or  ignorance,  when 
by  proper  diligenoe  on  their  part  the  matter  complained  of 
might  have  been  avoided. ^ 

VI.     Foe  TiiAUD. 

§  425.  It  is  a  principle  well  settled  in  law  that  fraud  viti- 
ates all  instruments  and  proceedings,  including  judgments, 
orders,  and  decrees,  and  sales  made  thereon  or  by  virtue 
thereof.* 

§  42G.  If  not  absolutely  void,  they  will  be  avoided  or  set 
aside  at  the  instance  of  the  injured  party  if  application  be 
made  within  proper  time.^ 

§  427.  Sales,  as  well  judicial  as  others,  will  be  set  aside  by 
the  courts  where  fraud  is  made  to  appear,  (and  in  some  cases) 
even  after  confirmation  thereof.** 

§  428.     If  the  person  conducting  a  judicial  sale  purchase  at 

*  Strong  V.  Caton,  1  Wis.  471 ;  Williams  v.  Dale,  3  Johns.  Cli.  291 ;  Griffitli 
V.  Hadlcy,  10  Bosw.  587. 

"  Leonard  v.  Taylor,  12  Mich.  398. 

3  Am.  Ins.  Co.  v.  Oakley,  9  Paige,  258,  260,  2G1. 

*  Hoit  V.  Holcomb,  3  Foster,  (N.  H.)  554;  Michoud  v.  Girod,  4  How.  503. 
5  Michoud  V.  Girod,  4  How.  503;  Concord  Bank  v.  Greg.  14  N.  H.  331 ; 

Davoue  v.  Fanning,  2  Johns.  Ch.  252;  Loyd  v.  Malone,  33  111.  43;  Neal  u. 
Stone,  20  Mo.  294. 

*  Anderson  v.  Foulke,  2  Har.  &  G.  346,  357;  Billington  v.  Forbs.  10  Paige, 
487 ;  King  v.  Piatt,  37  N.  Y.  155 ;  Garrett  v.  Moss,  20  111.  549 ;  Johnson  v 
Johnson,  40  Ala.  247;  May  v.  May,  11  Paige,  201. 


IGO  JUDICIAL   AND   EXECUTION    SALES. 

Ins  own  sale,  it  is  a  fraud  for  which  the  sale  will  be  set  aside  on 
motion  to  the  same  court  in  which  the  sale  is  ordered,  if  appli- 
cation be  made  before  confirmation;  and  if  after  confirmation, 
then  the  proceeding  to  set  the  sale  aside  is  by  petition  or  bill 
in  chancery. 

§429.  The  rule  is  the  same  if  the  person  selling  procure 
the  purchase  for  himself  or  for  his  benefit  through  a  third 
party.  And  though  some  authorities  treat  such  sales  as  not 
voidable,  by  others  they  are  held  to  be  absolutely  void.  The 
latter  is  the  ruling  in  the  Supreme  Court  of  the  United  States.^ 

§  430.  A  purchase  by  the  attorney  of  the  execution  plain- 
titf  at  a  price  greatly  inadequate,  will  be  cause  for  the  most 
vigilant  scrutiny,  in  to  every  circumstance  which  might  aftect 
the  fairness  or  demonstrate  the  unfairness  of  the  sale.  Even 
the  jDurchase  by  the  attorney  alone  (without  such  inadequacy,) 
has  been  considered  good  cause  for  setting  aside  the  sale,  as 
being  against  "  the  policy  of  justice." ^  In Bussy  v.  Ilardi?i,'' 
the  court  say:  (referring  to  Howell  v.  McGreenj^  7  Dana.  389 
and  390,  and  to  Foremcm  v.  IRmt,  3  Dana.  622;)  "it  is  said, 
that  a  sale  at  which  the  attorney  purchases  at  a  grossly  inade- 
quate price,  should  be  considered  as  per  se,  in  the  twilight 
between  legal  fraud  and  fairness,  and  that  slight  additional 
facts  exhibiting  a  semblance  of  unfairness  would  be  sufiicient 
to  vitiate  the  sale  or  make  the  j)urchaser  a  trustee,"  The 
court  adds.  "  If  there  be  any  ground  for  such  a  distinction  as 
we  think  there  is,  it  rests  upon  the  superior  knowledge  of  the 
right,  and  of  the  subject  of  sale  Avhich  the  attorney  has  by 
reason  of  his  connection  with  the  suit,  and  upon  the  presumed 
influence  which  he  has  over  the  time  and  manner  of  the  sale 
and  over  the  person  who  makes  it,  by  reason  of  his  representing 
the  party  for  whose  interest  primarily,  the  sale  is  to  be  made." 

'  ^Miclioud  V.  Girod,  4  How.  503;  Davouc  «.  Fanning,  3  Johns.  Cli.  253; 
Wormslcy  «.  Wormsley,  8  AVheat.  421 ;  Mile.s  v.  Wheeler,  43  111.  123;  Harris 
r.  Parker,  41  Ala.  G04;  Borasen  «.  AYclls,  4  Green,  (N.  J.)  87;  Swazey  v. 
Burke,  12  Pet.  11. 

«  Busy  V.  Hardin,  2  B.  Mon.  407. 

1  Ibid,  4db,  410. 


SETTING   ASroE   SALE.  161 

VII.     For  Heversal  of  the  Decree  of  Sale. 

§431.  Where  the  sale  is  to  a  third  -person  aiid  I)07ta  Jide 
purchaser,  and  has  been  fully  completed  by  confirmation,  con- 
veyance and  payment,  it  will  neither  be  avoided  nor  will  it  be 
set  aside  by  reason  of  a  subsequent  reversal  of  the  decree.  This 
rule  is  so  generally  recognized  as  to  scarcely  require  authorities 
to  support  it.  In  the  language  of  the  Illinois  Supreme  Court, 
"  If  the  court  has  jurisdiction  to  render  the  judgment  or  to 
pronounce  the  decree,  that  is,  if  it  has  jurisdiction  over  the 
parties  and  the  subject  matter,  then  upon  principles  of  uni- 
versal law,  acts  performed  and  rights  acquired  by  third  persons, 
under  the  authority  of  the  judgment  or  decree,  and  while  it 
remains  in  force,  must  be  sustained,  notwithstanding  a  subse- 
quent reversal.  1 

VIII.     Ee-Sale. 

§  432.  A  re-sale  will  ordinarily  be  ordered  wiien  the  sale  is 
set  aside  for  fraud,  irregularity,  mistake,  surprise,  inadequacy 
of  price,  or  for  such  other  cause  as  does  not  involve  a  want  of 
jurisdiction  or  power  to  sell  in  the  court,  if  the  sale  is  set 
aside  before  confirmation.  ^ 

§  433.  And  in  some  cases  the  first  purchaser,  being  in  fault, 
will  be  liolden  for  the  discrepancy  in  amount  between  the  first 
and  second  sale,  if  the  second  sale  be  for  a  less  sum  than  the 
fii'st  one,  3 

§  434.  In  Maryland,  under  the  code  or  statute,  if  the  sale 
be  partly  on  a  credit  and  the  purchaser  fail  to  meet  the  deferred 

'  Goudy«.  Hall,  36  111.  319.  Sec  also  McLagaii  i).  Brown,  11  111.  523; 
Young  ».  Loraiae,  11  111.  037;  Iverson  v.  Loborg,  26  111.  179;  Fitz  Gibbon 
V.  Lake,  29  111.  165 ;  McJiltou  v.  Love,  13  111.  480 :  Peak  v.  Sliasted,  21  111. 
137;  Grignon's  Lessee  v.  Astor,  2  How.  340;  McBride  v.  Longworth,  14 
Ohio  St.  350;  Irwin  v.  Jeffers,  3  Ohio  St.  389. 

"  Stephens  w.  McGruder,  31  Md.  168;  Deadrick  v.  Smith,  G  Humph.  138; 
King  V.  Piatt,  37  N.  Y.  155 ;  Hay's  Appeal,  51  Peun.  St.  58 ;  Lefevre  v.  Lara- 
way,  22  Barb.  107;  Am.  Ins.  Co.  v.  Oakly,  9  Paige,  259;  Post  ?;.  Leet,  8 
Paige,  337;  Brown  v.  Frost,  10  Paige,  243;  Coffey  ».  Coffey,  16  111.  141; 
Roberts  v.  Roberts,  13  Gratt.  (Va.)  039. 

3  Mullin  V.  Mullin,  1  Bland.  541;  Stephens  v.  McGruder,  31  Md.  108. 
11 


162  JUDICIAL    AXD   EXECUTION   SALES. 

pajmcnts  wlien  due,  then  on  application  of  the  master  or  other 
person  conducting  the  sale,  the  sale  may  be  set  aside  and  a 
re-sale  oi-dered  at  the  risk  of  tlie  jBrst  purchaser;  or  the  court, 
under  its  equity  powers,  (if  of  general  chancery  jurisdiction,) 
may  compel  a  compliance  or  specific  performance  on  the  part 
of  the  purchaser  at  its  discretion,  in  view  of  all  the  circum- 
stances of  the  case  and  as  may  best  subserve,  in  its  opinion, 
the  interests  and  rights  of  the  parties.  ^  Such,  however,  is  the 
g-eneral  law  aside  from  statute. 

§  435.  The  making  of  a  judicial  sale,  in  jSTew  York,  is  under 
control  of  the  court,  and  if  the  parties  in  interest,  creditor  and 
debtor,  cannot  agree  as  to  the  order  in  which  property  shall  be 
offered  for  sale,  either  party  may  apply  to  the  court  for  instruc- 
tions to  the  referee  in  that  resjiect.- 

§  43G.  When  valuable  j)roperty  is  sold  by  the  i-eferee  in  a 
different  order  from  that  requested  by  the  debtor,  whose  prop- 
erty is  being  sold,  and  there  is  reason  to  believe  that  selling  in 
the  order  requested  by  the  debtor  would  have  resulted  in  a 
benefit,  and  there  are  circumstances  tending  to  prevent  com- 
petition at  the  sale,  a  re-sale  will  be  ordered. 

§  437.  And  so  where  the  inclemency  of  the  weather  was 
such  as  to  i3re\'ent  the  attendance  of  bidders,  the  purchaser 
being  the  only  one  present  and  she  residing  at  the  place  of 
sale,  it  was  held  that  the  sale  should  be  set  aside,  and  a  re-sale 
was  ordered.-' 

§  438.  If  it  become  apparent  to  the  court  from  the  face  of 
the  proceedings,  or  otherwise,  that  the  rights  of  minors  have 
been  illegally  invaded  or  compromised,  the  covirt  will,  on  its 
o^vn  motion,  set  aside  or  decline  to  confirm  the  sale,  and  will 
order  a  re-sale  of  the  property  without  waiting  to  be  invoked 
so  to  do.  It  is  in  such  case  the  duty  of  the  court,  in  the 
exercise  of  its  high  powers  as  guardian  of  all  minors,  to  pro- 

'  Stephens  v.  McGruder,  81  Md.  1G8. 

*  King  V.  Piatt,  37  N.  Y.  155.  In  this  case  the  court  justly  say  that, 
"  Occupj'ing  the  position  of  advantage  it  beliooved  the  plaintiffs  to  pursue 
tlicir  remedy  with  scrupulous  care,  lest  they  should  inflict  an  injury  on 
one  wlio  was  comparatively  powerless."  See  also  to  this  point  Collier  v. 
Whipple,  13  Wend.  229. 

"  Roberts  v,  Roberts,  13  Gratt  (Va.)  039. 


siaTixG  ASIDE  saij:.  1C3 

tcct  the  iiitd'csts  of  those  whom  cc|uity  makes  the  special 
objects  of  its  carc;i  and  the  purchase  of  the  j^i'opertj  hy  the 
ii'uarclian  ad  litein  of  an  infant  owner  is  a  case  loudly  callinir 
for  such  interference.  2 

§  430.  The  biddings  may  be  opened  and  a  re-sale  ordered, 
at  the  discretion  of  the  court,  on  terms,  at  any  time  before  the 
confirmation  of  the  sale,  in  case  there  be  an  acceptable  advance 
oflered  on  a  greatly  inadequate  price.  ^ 

§  440.  The  petition  to  reopen  the  bidding  should  state  the 
proposed  amount  of  the  advance  upon  the  former  bid.'^^ 

§  441.  Before  conlirmation  an  offer  of  ten  per  cent,  and 
costs  of  increase  is  sometimes  deemed  sufficient  to  cause  an 
order  of  re-sale  to  be  madc^ 

'  Lcfcvrc  V.  Laraway,  23  Barb.  1G7;  Lansing  v.  ^IcPlicrson,  3  Jolms.  C'li. 
424;  Billington  v.  Fovbs,  10  Paige,  487. 

*  Lcfc-\Te  V.  LaraAvaj^,  23  Barb.  IGl. 

"  Cliildress  v.  Ilurst,  3  Swan  (Tcnn.)  487;  Hay's  Appeal,  51  Tcuu.  St.  58; 
Wright  V.  Cautzon,  31  Miss.  514,  517. 

*  Wriglit  V.  Cautzon,  31  Miss.  514,  517. 

"  Ilorton  V.  Ilorton,  3  Brad.  (N.  Y.)  200. 


CHAPTEE    XI. 

ESTOPPEL  —  WARRANTY  —  CAVEAT  EMPTOR. 

I.      ESTOrPEL. 

II.    Warraktt. 
III.     Caveat  Emptok. 

I.       ESTOITEL. 

§  442.  Sales,  as  well  judicial  and  on  execution,  as  otliers, 
may  be  so  made,  or  made  under  sucli  circumstances  as  will 
prevent  tlie  owner  of  the  property  from  questioning  tlieir 
validity,  tliougli  the  sales  be  in  other  respects  defective,  or  even 
void.  And  thus  the  claimant  is  subjected  to  an  estoj)pel.  In 
such  cases  title  is  conferred  on  the  purchaser  by  estoppel. 

§  443.  If  one  so  far  countenance  the  sale  of  his  ovm.  property 
as  to  stand  by  and  see  it  sold  by  the  sheriff,  or  other  officer,  as 
the  property  of,  and  on  execution  against  another,  without 
objecting  to  the  sale,  he  will  be  estopped  to  deny  the  validity 
thereof,  1  as  against  a  honafide  purchaser. 

§  444.  Estoppels  not  only  bind  "parties  but  privies  in  blood 
and  estate."  2 

§  445.  "What  estops  the  ancestor  estops  the  heir,  and  that 
which  estops  the  original  party  estops  also  those  claiming 
under  him,  in  whatever  right  they  claim. 

§  446.  In  Bush  v.  Coojyer,^  the  United  States  Supreme 
Court  hold  the  following  language  in  reference  to  estoppels 
which  run  with  the  land:  "  Estoppels  which  run  with  the  land, 
and  work  thereon,  are  not  mere  conclusions ;  they  pass  estates 
and  constitute  titles;  they  are  muniments  of  title,  assuring  it 

'  Eplcy  v.  Witlieiwv,  7  Watts,  1G3;  Carr  v.  Wallace,  7  Watts,  394;  Read 
f.  Ileasley,  3  B.  Mon.  2o4. 

=  Bush  «.  Cooper,  18  How.  85 ;  Baxter  v.  Bradbury,  20  ]\Iaine,  2G0 ;  Carver 
V.  Jackson,  4  Pet.  85 ;  Mark  v.  Willard,  13  N.  II.  389 ;  White  v.  Patten,  24 
Pick,  324. 

'  18  How.  85. 

(104) 


ESTOrPKL.  165 

to  tlic  2)urcliascr.  Tlicir  operation  is  liiglily  beneficial,  tending 
to  produce  secnrity  of  titles." 

§  447.  This  case  was  that  of  a  mortgagor,  with  warranty 
implied  in  law,  who  bonght  in  the  premises  afterwards  on  exe- 
cution sale,  based  on  a  judgment  lien  which  was  older  than  the 
mortgage.  The  Suj^reme  Court  of  Louisiana,  as  also  that  of  the 
United  States,  held  that  he  was  estopj)ed  to  sit  up  his  execution 
deed  against  the  eifect  of  his  mortgage,  was  estopped  by  his 
^van•anty  from  "  denying  that  he  was  seized  of  the  particular 
estate  at  the  time  of  makino; ''  the  mortc'ao-e.  In  short,  that  a 
mortgagor,  or  grantor,  cannot  buy  in  a  superior  title  and  enforce 
it  against  those  claiming  under  his  own  deed  of  warranty.  ^ 

§  448.  The  recital  in  a  deed,  or  assertion  of  o^mership,  or 
other  fact,  upon  the  strength  of  which  another  is  induced  to 
commit  liis  interest,  or  to  buy,  will  estop  the  person  making 
such  recitals  or  assertions,  from  denying  the  truth  thereof,  or 
asserting  a  claim  inconsistent  therewith. 

§  449.  If  one  entitled  to  dower  in  lands  of  a  decedent  sell 
them  under  proceedings  in  probate  as  administrator,  and  convey 
by  deed  of  Avarranty,  she  is  thereby  estopped  from  afterwards 
claiming  dower  in  the  lands  so  sold  and  conveyed.-  Otherwise, 
however,  if  she  convey  without  warranty.^ 

§  450.  The  obtention  of  an  injunction  by  a  widow  and  heirs 
to  prevent  sales  of  a  decedent's  lands  on  judgments  at  law  until 
the  same  can  be  sold  by  proceedings  in  probate,  in  course  of 
administration,  will  estop  them  from  objecting  that  they  were 
not  notified  of  such  proceedings  in  j^robate  afterwards  prose- 
cuted for  the  sale  of  such  lands."* 

§  451.  A  husband  and  wife  being  seized  of  real  estate  as 
tenants  of  the  entirety,  the  husband  died  leaving  a  will  by  which 
all  his  real  estate  was  directed  to  be  disposed  of  by  sale,  and 
the  proceeds  to  be  applied  in  a  certain  way,  but  not  authorizing 

'  Bush  V.  Cooper,  18  How.  82,  85 ;  Van  Rcnscllear  v.  Kearney,  11  How. 
o22 ;  Stewart  v.  Anderson,  10  Ala.  504 ;  Dorsey  «.  Gassaway,  2  Harr.  &  J.  411. 

'McGee  r.  Mellon,  23  Miss.  585;  Maple  v.  Kussart,  53  Penn.  St.  348; 
Stroble  v.  Smith,  8  Watts,  208;  Heard  v.  Hall,  16  Pick.  457. 

2  Sipp  V.  Lawback,  2  Harr.  443;  Owens  v.  Slater,  2G  Ala.  547. 

*  Simmons'  Estate.  19  Penn.  439. 


ICG  JUDICLiL   AXD    EXECUTIOM    SALES. 

auy  one  to  make  tlie  sale.  The  lands  -were  sold  by  order  of  tlio 
orj)lians'  conrt,  including  that  which  had  been  held  by  the 
Inisband  and  wife  as  tenants  of  the  entirety.  The  ■widow 
encouraged  the  jinrchaser  to  buy  at  such  sale  and  herself 
received  part  of  the  purchase  money.  It  was  held  that  although 
the  widow  was  invested  with  the  ownership  in  fee  as  survivor 
of  the  husband,  that  nevertheless  she  was  estopped  from  setting 
up  title  to  the  property,  she  having  encouraged  the  purchaser 
to  buy  the  same  as  belonging  to  the  estate  of  the  decedent.  ^ 

§  452.  In  ejectment  by  the  purchaser  under  a  mortgage 
foreclosure,  the  mortgagor  is  estopped  from  denying  his  own 
title  at  tlie  date  of  the  mortgage,  and  is  also  estopped  from 
setting  up  an  outstanding  title  to  the  premises  in  a  third 
person.  He  cannot  execute  a  deed  of  mortgage  on  property 
and  then  deny  his  right  to  that  of  which  he  thus  assumed  to 
be  the  owner.- 

§  453.  A  ward  is  not  estopped  by  the  deed  of  liis  guardian, 
thouo-h  made  with  warrantv.  The  warrantv  binds  the  OTardian 
personally.  ^ 

§  454.  jSTor  is  a  purchaser  of  lands  at  a  judicial  sale  made 
under  a  void  decree  estopped  to  deny  the  title  of  those  as  whose 
land  it  is  sold.^ 

§  455.  The  receipt  of  a  widow  or  by  a  ward,  after  such  ward 
attains  to  his  majority,  of  their  portion  of  purchase  money  of 

^  ]\raple  V.  Kussart  and  others,  53  Pcnn.  St.  S48.  In  this  case  the  court 
say:  "The  proof  is  that  slie  urged  tlie  purchasers  to  buy  that  the  property 
might  remain  in  the  family,  and  it  was  at  her  request  they  bought.  They 
paid  the  purchase  money,  $G,410,  and  it  tvas  distributed  to  the  widow  and 
heirs."  And  that,  "It  is  a  maxim  of  common  lionesty,  as  well  as  of  law, 
that  a  party  cannot  have  the  price  of  land  sold  and  the  land  itself."  *  * 
"  If  one  receive  the  purchase  money  of  land  sold,  he  affirms  the  sale,  and 
he  cannot  claim  against  it  whether  it  was  void,  or  only  voidable ;  Adlum 
r.  Yard,  1  Rawle.  163;  Wilson  v.  Bigger,  7  W.  &  S.  1G2;  Crowley  r. 
McConkey,  5  Barr.  1G8;  Stroble  v.  Smith,  8  Watts,  280;  Smith  v.  Warden,  7 
Harris,  424.  And  the  court  also  held,  "That  the  fact  that  in  sales  of  this 
kind,  the  maxim  caveat  svpior  applies,  docs  not  avoid  the  estoppel." 

=  Redman  «.  Ballamy,  4  Cal.  247;  Bush  v.  JMarshall,  G  IIow.  288;  Tarter 
V.  Hall,  2  Cal.  2G3. 

3  Young  n.  Lorain,  11  111.  024. 

*  Price  V.  Johnson,  1  Ohio  St.  390. 


WARRANTY.  1G7 

lands  sold  by  an  administrator  or  guardian,  under  proceedings 
in  probate,  will  estop  tliem  from  disputing  the  validity  of  the 
sale,  if  received  with  full  knowledge  of  their  rights  and  of  all 
the  circumstances,  and  so  likewise  does  the  receijit  of  the  pro- 
ceeds of  such  sale  vested  in  other  property.^ 

§  45G.  If  a  party  request  or  direct  the  officer  to  sell  lands  us 
his,  and,  being  present  at  the  sale,  do  not  dissent,  he  is  regarded 
as  assenting,  is  estopped  from  denying  the  title  of  the  pur- 
chaser. - 

§  457.  In  Penii  v.  Ileheij'^  the  court  say:  "It  is  a  princi- 
ple, that  though  in  general,  estoj^pels  are  odious,  as  preventing 
ii  party  from  stating  the  truth,  yet  they  are  favored  when  they 
promote  equity.  Comyn's  Dig.  title  Estoppel.  The  aj)plica- 
tion  of  this  j)rinciple  does  not  depend,  as  we  understand  it, 
upon  any  suj^posed  distinction  between  a  void  and  a  voidable 
sale.  If  the  sale  be  one  or  the  other,  receiving  the  money  or 
its  proceeds  in  other  valuable  property  with  a  knowledge  of 
the  facts,  touches  the  conscience  of  the  party  and  therefore 
establishes  the  right  of  the  party  claiming  under  the  sale,  in 
one  case  as  well  as  in  the  other." 

II.     Warra>;tv. 

§  4.5S.  It  is  a  well  settled  princijile  that  in  judicial  sales 
there  is  no  warranty.^  Tliis  principle,  as  a  general  rule, holds 
good  as  to  all  those  sales  of  real  property  (they  being  in  char- 
acter judicial  sales)  made  in  equitable  proceedings,  under  the 

'Ellis  X.  Diddy,  1  Smith,  Ind.  354;  Stroble  t.  Smith,  8  Watts,  280; 
Bohart  t.  Atkinson,  14  Ohio,  328;  Scott  v.  Frechmd,  7  S.  &  M.  409;  Penn 
i\  Ileisoy,  19  III.  295. 

*  Read  v.  Ilcaslc}-,  2  B.  Mon.  254,  257. 
3 19  111.  295. 

*  The  Monte  Allegre,  9  Wheat.  GIG;  United  States  n.  Duncan,  4  McLean, 
GOG;  Owens  Z5.  Thompson,  3  Scam.  502;  Lynch  r.  Baxter,  4  Texas,  431; 
Williams  11.  McDonald,  13  Texas  322;  Freeman  «.  Caldwell,  10  Watts.  9; 
King  V.  Gunnison,  4  Barr.  171;  Fox  x.  Mcnsch,  3  Watts.  &  Sergt.  444; 
Jennings  x.  Jenkins,  9  Ala.  285;  Rogers  x.  How,  G  Rich.  (S.  C.)  3G1;  Breck- 
enridgc -y.  Dawson,  7  Ind.  383;  Halleck  t\  Gray,  9  Cal.  181;  Sumner  r. 
Williams,  8  Mass.  1G2;  Bingham  v.  Maxey,  15  111.  295;  Evans  v.  Dendv,  2 
Spccrs.  (S.  C.)  9. 


IGS  .TUDICIxVL    AND   EXECUTION^   SALES. 

direction  and  control  of  tlie  courts,  usually  denominated  mort- 
gage sales,^  guardian's,  executor's,  and  administrator's  sales,- 
sales  for  enforcement  of  vendors,  and  statutory  liens, ^  and  sales 
in  proceedings  for  partition.^  In  short,  in  all  sales  made  under 
suj)ervision  and  control  of  tlie  courts  on  decrees  in  equity  or  on 
decrees  made  in  tlie  exercise  of  equity  powers,  ^  there  is  no  war- 
ranty; the  purchaser  takes  what  he  gets.*'  The  officer,  trustee, 
or  person  executing  the  deed  is  the  mere  "  agent  or  instruinent " 
of  the  court;"  is  not  liable  for  defect  of  title  or  insufficiency 
of  the  proceedings;^  nor  at  all,  except  for  fraud, ^  unless  he 
conveys  with  warranty,  and  then  the  covenat  of  warranty  binds 
him  personally  and  him  only.^  '^  In  TltG  Monte  Allcgre  more 
particularly  referred  to  under  the  next  head  thib  rule  is  plainly 
asserted  by  the  Supreme  Court  of  the  United  States,  and  it  is 
the  general  doctrine  in  most  if  not  all  of  the  states,  and  of  the 
common  law.^  ^ 

III.     Caveat  EMrroE. 

§  450.  The  rule  of  caveat  emptor  applies  in  all  its  rigor  to 
judicial  sales  of  real  property.^- 

^  Ante,  pp.  22,  24. 

-  Mockbec?).  Gardner,  2  liar.  &  6. 170 ;  A'andever  t.  Baker,  lb.  12G ;  Lynch 
».  Baxter,  4  Texas,  431. 

'  Ohio  Life  &  Trust  Co.  t.  Goodiu,  10  Ohio  St.  557. 

^  liOgers  t).  Ilocn,  0  Eich.  301 ;  Young  v.  Loraiue,  11  III.  024. 

'■"  United  States  v.  Duncan,  4  McLean,  007. 

«  The  Monte  Allegre,  9  Wheat.  GIG. 

'  Mullikiu  «.  Mullikin,  1  Bland,  541;  Harrison  v.  Harrison,  1  Md.  Ch. 
Dccis.  331 ;  Vandcver  t.  Baker,  13  Penn.  St.  321,  120. 

«  Mockbee  v.  Gardner,  2  liar.  &  G.  170. 

'J  Ibid,  175. 

'»  Young  «.  Lorain,  11  111.  024;  Breckcnridge  r.  Da^vson,  7  Ind.  383; 
Sumner  «.  Williams,  8  Mass.  102;  Meller  v.  Boardman,  13  S.  &  M.  100; 
Mockbee  v.  Mockbee,  2  Har.  &  G.  175. 

"  The  Monte  Allegre,  9  Wheat.  GIG. 

1=  The  Monte  Allegre,  9  Wheat.  GIG ;  Lessee  of  Convin  v.  Benham,  2 
Ohio  (N.  S.)  30;  Owsley  «.  Smith,  14  Md.  153;  Mason  «.  Wait,  4  Scam.  127; 
Worthington  v.  McRoberts,  9  Ala.  297 ;  Fox  v.  Mensch,  3  Watts.  &  Sergt. 
444;  Mellen  v.  Boarman,  13  S.  &  M.  100;  Lynch  «.  Baxter,  4  Texas,  431 ; 
Bingham  v.  Maxey,  15  111.  295;  Vandcver  v.  Baker,  13  Penn.  St.  124,  120; 
Anderson  t.  Foulk,  2  liar.  &  G.  340 ;  Thompson  t.  Monger,  15  Texas  523 ; 


CAVTLVr   EMFIOE.  1G9 

§  4G0.  The  Supreme  Court  of  the  United  States  hold  tliat 
"generally  in  all  judicial  sales  the  rule  caveat  emjjtor  must 
necessarily  api^ly  from  the  nature  of  the  transaction;  there 
being  no  one  to  whom  recourse  can  be  had  for  indemnity  against 
any  loss  which  may  be  sustained.  Is  there  then  (they  ask)  any- 
thing peculiar  in  the  powers  of  a  court  of  admiralty  that  will 
authorize  its  interposition,  or  justify  granting  relief  to  which 
a  party  is  not  entitled  by  the  settled  rules  of  the  common  law?" 
They  say,  "we  know  of  no  such  j)rinciples."i 

§  4G1.  Though  tlie  case  in  whicli  this  doctrine  is  thus 
broadly  asserted  was  a  case  in  admiralty,  it  will  be  seen  that 
the  decision  was  avowedly  ])ut  upon  the  principles  of  the  com- 
mon law.  The  same  case  is  expressly  referred  to,  and  the  same 
principle  re-asserted  by  the  United  States  court  of  claims  in 
the  case  of  PucJcet  v.  T/ie  United  States." 

§  4G2.  In  the  absence  of  misconce]3tion  and  of  fraud,  the 
buyer  must  look  out  for  himself.  He  buys  at  his  own  risk, 
both  as  to  title  and  as  to  quality,  The  rule  does  not  apj)ly  how- 
ever in  case  there  be  fraud.  ^  And  it  has  been,  liolden  in  Penn- 
sylvania that  the  rule  applies  only  to  open  defects;  that  as 
against  secret  defects  in  a  title,  a  purchaser  wall  be  protected. "^ 

liickley  v.  Biddle,  33  Penn.  St.  27G ;  Strouse  v.  Dreman,  41  Mo.  289 ;  Waldcn 
V.  Gridlcy,  36  111.  523.  The  doctrine  is  stated  in  Illinois  in  the  following 
terms :  "Appellant  when  he  purchased  at  the  administrator's  sale  acquired 
such  title  only  as  was  then  vested  in  the  heirs  of  Strain.  If  it  was  then 
subject  to  the  lien  of  Walker's  judgment,  he  acquired  it  with  that  impurity 
and  to  preserve  his  title  lie  must  clear  it  from  the  incumbrance."  Walden 
V.  Gridley,  30  111.  p.  532.  Creps  ®.  Baird,  3  Ohio  St.  277 ;  Corwin  v.  Benham, 
2  Ohio  St.  36;  Miller  v.  Finn,  1  Neb.  255. 

'  The  Monte  Allegre,  9  Wheat.  OIG. 

^  4  Am.  L.  Reg.  459,  460. 

"  Bingham  v.  Mancey,  15  111.  295. 

*  Banks  v.  Amnion,  27  Penn.  St.  173. 


CHAPTER   XII. 

COLLATERAL    IMPEACHMENT— VOID    JUDICIAL    SALES— 
RETURN  OF  PURCHASE  MONEY. 

I.  When  Lmpeachable  Coixatehally. 

II.  AVhen  Not  LMrEACiiAiiLE  Collateiially. 

III.  Void  Jcdictal  Sales. 

IV.  Return  of  Purchase  Moxey. 

I.     When  iMrEACiiACLE  Collatkijallv. 

§  4G3.  TliG  principle  is  well  settled,  not  only  in  tlic  Supreme 
Court  of  tlic  United  States,  but  in  the  State  Courts  generally, 
that  if  there  is  no  jurisdiction  the  proceedings  are  void;  they 
are  a  nullity  and  confer  no  right;  are  no  justification,  and  will 
be  rejected  when  collaterally  drawn  in  question.  ^ 

§  4:64:.  If  a  court  acts  without  authority  its  judgments  and 
orders  are  nullities,  and  are  not  voidable  only  but  are  absolutely 
of  no  efiect,  and  cannot  bar  a  recovery  or  defense  asserted  in 
opposition  to  them  even  prior  to  their  reversal. ^ 

§  465.  And  though  the  court  has  jurisdiction,  if  from  any 
cause  the  sale  or  deed  be  really  void,  then  the  objection  is  good 
when  made  in  a  collateral  proceeding.^ 

II.       AViIEN    ]S^0T    iMrEACHAULE    CoLLATEKALLV. 

§  40G.  It  is  equally  Avell  settled  in  the  Supreme  Court  of 
the  United  States  that  if  the  subject  matter  be  within  the  juris- 
diction of  the  court  and  is  brought  before  them  by  proper 
petition,   the   validity  of  the  proceedings  being  brought   in 

*  Thompson  v.  Tolmie,  2  Pet.  157;  Sbriver's  Lessee  v.  Lynn,  2  How.  43; 
Wilkerson  v.  Lcland,  2  Pet.  G27;  Clark  v.  Thompson,  47  111.  27;  Morris  v. 
IIog:le,  37  III.  150;  Swigart  v.  Harber,  4  Scam.  G6. 

*  Thompson  v.  Tolmie,  2  Pet.  157;  Shriver's  Lessee  v.  Lynn,  2  How.  43; 
Elliott  V.  Picrsol,  1  Pet.  328;  jMorris  v.  Ilogle,  37  HI.  150. 

'  Cooper  V.  Siuuledand,  3  Clarke  (Iowa)  114;  Frazicr  r.  Steenrod,  7  Iowa 
34G. 

(170) 


^VHKN    KOT    i:MrEAOII^UJLK    COLLATKR-UXY.  ITl 

question  collaterally,  they  are  not  void  but  merely  voidable. 
Errors  and  irrof^ularities,  and  all  other  deficiencies,  if  any  there 
be,  must  be  reached  and  corrected  by  some  direct  proceeding, 
either  before  the  same  court  or  in  an  apj)ellate  one,  and  such 
too  is  the  general  doctrine.* 

§  467.  Wlien  a  court  has  obtained  jurisdiction  it  is  compe- 
tent to  decide  every  question  arising  in  a  cause,  and  whether 
decided  correctly  or  incorrectly,  the  decision  until  reversed  is 
binding  not  only  in  the  same,  but  in  every  other  court,  ^ 

§  468.  If  the  jurisdiction  over  the  subject  matter  appears 
on  the  face  of  the  proceedings  in  which  a  sale  is  made,  the 
errors  or  mistakes,  if  any  there  be,  cannot  be  examined  when 
brought  up  collaterally.  ^ 

§  469.  Where  debts  have  been  regidarly  ju-oven  and  allowed 
against  the  estate  of  a  decedent,  and   lands  sold   on   proper 

*  Thompson  v.  Tolmie,  2  Pet.  157;  Parker  t.  Kane,  22  How.  14;  Alexan- 
der V.  Xelson,  42  Ala.  4G2;  Dnquindre  v.  Williams,  31  Ind.  444;  Southern 
Bank -y.  Humphreys,  47  111.  227 ;  Woods  t'.  Lee,  21  La.  505;  Covington  v. 
Ingram,  64  N.  E.  123 ;  Iversod  v.  Loberg,  26  111.  179.  In  the  case  last  cited, 
Iverson  v.  Loberg,  the  Supreme  Court,  Justice  Caton,  say:  "We  are 
obliged  to  aflBrm  this  judgment,  much  against  our  inclination.  The  sale 
was  no  doubt  a  great  outrage,  and  we  should  as  at  present  advised,  not 
hesitate  to  reverse  the  proceeding  were  it  directly  before  us.  But  here  it 
comes  up  collaterally,  and  we  cannot  disregard  that  proceeding  unless  it 
Avas  void  for  want  of  jurisdiction.  We  cannot  hold  that  such  was  the 
case.  The  petition  stated  enough  to  require  the  court  to  act  in  the  prem- 
ises— to  set  it  in  motion,  and  that  was  sufficient  to  give  the  court  jurisdic- 
tion, and  whatever  was  done  under  it  was  not  in  the  exercise  of  an  usurped 
power,  but  of  one  conferred  bylaw,  and  although  the  court  may  have  exer- 
cised that  power  erroneously,  its  orders  and  decisions  are  binding  till 
reversed.  If  we  are  to  look  into  any  errors  in  that  proceeding,  it  must  be 
brought  before  us  by  writ  of  error."     (26  111.  182.) 

*  Elliott  t\  Piersol,  1  Pet.  328;  Parker  ®.  Kane,  22  How.  14;  Grignon's 
Lessee  v.  Astor,  2  How.  319;  Davis  v.  Helbig,  27  Md.  452;  Wright  v.  AVal- 
baugh,  39  111.  554;  Iverson  t\  Loberg,  2G  111.  179;  Fithian  i\  Monks  & 
Brooks,  48,  Mo.  502 ;  Florentine  v.  Barton,  2  AYall.  210,  216. 

^  Thompson  «.  Tolmie,  2  Pet.  157;  Pursley  ».  Hays,  22  Iowa  1;  United 
States  t'.  Aredondo,  6  Pet.  709;  Grignon's  Lessee  v.  Astor,  2  How.  319; 
Ex  parte  Watkius,  3  Pet.  205;  Rhode  Island  v.  Massachusetts,  12  Pet.  718; 
Phil.  &  Trenton  P.  R.  Co.  t\  Stimson,  14  Pet.  448;  Thomas  «.  La  Barron,  8 
Met.  355;  Iverson  v.  Loberg,  26  111.  179;  Wcincn  v.  Hciutz,  17  111.  257; 
Florentine  r.  Barton,  2  Wall.  210,  216. 


1(15  JUDICIAL   AisD   EXECUTION   SAI>ES. 

application  of  tiie  administrator  to  pay  tlie  same,  as  appears 
by  tlie  record,  then  parole  evidence  cannot  Le  received  in  a 
collateral  proceeding  to  sliow  that  no  debts  ever  existed  against 
the  estate.  If  the  allowance  of  the  debts  and  the  sale  were 
bronght  about  by  fraud,  then  the  remedy  is  in  a  direct  proceed- 
ing in  a  court  of  general  equity  jurisdiction;  but  the  jurisdic- 
tion and  record  of  the  probate  court  cannot  be  collaterally 
impeached.  1 

§  470.  In  an  action  of  ejectment  involving  the  effect  of  an 
administrator's  deed  of  lands  sold  for  payment  of  debts  in 
probate,  the  regularity  or  legality  of  the  administrator's  ap- 
pointment, when  the  court  had  jurisdiction,  cannot  be  inquired 
into.  "Whether  the  apj)ointmeiit  be  regular  or  irregular  the 
person  apj)ointed  becomes,  at  least,  the  administrator  de  facto, 
and  being  such  the  matter  cannot  be  questioned  in  a  collateral 
proceeding.  2 

§  471.  In  the  case  above  cited  the  case  of  CidU  v.  Uoshins, 
9  Mass.,  is  referred  to  and  regarded  as  unsatisfactory;  but  it  is 
not  precisely  in  point  with  the  question  which  was  raised  in 
Illinois.  The  Massachusetts  case  rested  on  an  appointment  by 
the  probate  court  of  a  contrary  county  to  the  one  in  which  the 
decedent  died,  an  act  absolutely  prohibited  by  the  Massachu- 
setts statute.  Hence  the  Massachusetts  court  treated  the  appoint- 
ment as  simply  void,  as  an  act  in  violation  of  law  and  not  as 
irregularity  or  mere  error.  ^ 

§  472.  It  follows,  therefore,  that  if  the  court  in  probate 
liavc  jurisdiction  properly  of  the  subject  matter  of  the  applica- 
tion, by  j)etition  properly  presented,  and  of  the  persons  of  the 

'  Lamothe  v.  Leppott,  40  Mo.  143.  In  this  case  the  court  say:  "The 
record  sliows  that  the  probate  court  had  full  jurisdiction,  and  the  pre- 
sumj^tion  is  in  favor  of  its  proceedings,  and  it  is  not  comijetent  to  attack 
the  record  by  parole  in  this  collateral  manner.  If  the  allowances  were 
procured  by  fraudulent  and  false  means  and  pretences,  unjustly  and  to  the 
injury  of  the  estate  and  the  parties  interested,  a  court  of  equity,  on  a 
proper  showing  of  the  facts,  might  afford  a  remedy;  but  in  a  proceeding 
wholly  collateral  a  party  cannot  be  permitted  to  introduce  oral  testimony 
to  falsify  the  record,  when  it  plainly  appears  that  the  court  whose  record 
is  thus  sought  to  be  impeached  had  jurisdiction." 

2  Wright  V.  Wallbaum,  39  111.  554;  Tiiley  v.  McCord,  24  Mo.  2G5. 

°  Cutts  V.  Iloskins,  9  Mass.  543. 


AVIIEX    KOT    IJIPEACIIABLE    COLLATEELY.  173 

parties  in  interest,  if  the  statute  so  requires  tliem,  the  sale, 
when  made  and  confirmed,  may  not  be  imj)eached  in  a  collateral 
proceeding,  although  it  may  have  been  made  to  pay  not  only  a 
larger  amount  than  was  necessary,  but  also  for  the  payment  of 
claims,  some  of  which  were  fraudulent  in  point  of  fact,  and 
if  the  purchaser  himself  be  not  a  party  to  the  fraud;  for  after 
conveyance  and  confirmation  the  sale  can  only  be  assailed  by  a 
direct  proceeding  in  chancery  by  original  bill,  when  complete 
jurisdiction  is  obtained  by  the  court  making  the  sale.^ 

§  473.  "We  do  not  conceive,  however,  that  these  principles, 
though  well  settled,  can  override  positive  statutory  require- 
ments as  to  things  made  necessary,  or  as  a  pre-requisite,  to  the 
validity  of  judicial  sales  by  the  legislation  of  the  several  states, 
but  take  it  to  be  a  general  rule  that  where  jurisdiction  of  the 
case  never  actually  attached,  as  for  want  of  notice  or  other 
cause,  and  whereby  statute  sales  are  declared  void,  or  may  not 
be  made  unless  certain  things  appear  to  have  been  done,  then 
a  deficiency  in  respect  thereto  cannot  be  supplied  by  intend- 
ment or  presumptions  of  law,  nor  upon  the  principles  of  res 
^judicata.  Yet,  when  such  statutes  are  merely  directory  in 
defining  the  course  to  be  pursued,  then  if  the  court  had  by 
law  jurisdiction  of  the  subject  matter  and  jurisdiction  of  the 
case  actually  attached  by  filing  a  j^etition,  or  petition  and 
notice,  if  notice  was  required,  and  such  was  exercised  by  the 
court  by  adjudication  and  order  or  decree,  then  by  intendment 
of  law  all  questions  in  regard  to  such  statutory  requirements, 
and  as  to  questions  necessary  to  be  adjudicated  in  arriving  at 
the  conclusion  attained,  are  put  at  rest  by  the  decision  and  arc 
binding  as  res  judicata  until  reversed  for  error,  or  set  aside 
by  a  direct  proceeding;  and  that  in  the  former  class  of  cases 
sales  are  void  and  will  be  so  treated  when  collaterally  dra^vn  in 
question; 2  and  that  in  the  latter  class  they  are  only  voidable, 

'  Mj'cr  V.  McDougal,  47  111.  278 ;  Moore  y.  Nicl,  39  III.  256.  In  this  case 
the  court  hold  that  it  is  not  required  to  make  valid  an  administrator's  sale 
in  probate  that  he  should  report  the  same  to  the  court ;  but  such  is  not  the 
current  of  authorities. 

'  Cooper  v.  Sunderland,  3  Iowa,  114;  Thornton  v.  Mulquinnc,  12  lo-^va, 
540;  Townsend  u.  Tallant,  33  Cal.  45. 


174:  JUDICIAL  AXD  executio:n"  sales. 

and  the  remedy  to  avoid  them  is  by  an  appeal  or  else  hy  a 
direct  proceeding  to  set  them  aside.  ^ 

III.     YoiD  Judicial  Sales. 

§  -it-i.  Jurisdiction,  as  we  have  seen,  being  indisj^ensable 
to  the  validity  of  judicial  proceedings,  it  follows  that  the  first 
great  essential  to  the  validity  of  judicial  sales  is  jurisdiction  in 
the  court  making  the  sale.     Without  this  the  sale  is  void." 

§  475.  If  the  court  making  the  order  of  sale  be  abolished 
by  law  before  the  final  consummation  of  the  sale,  then  the 
proceedings  end  with  the  court,  and  a  conveyance  resting  on 
such  circumstances  is  void.^  So  if  the  law  under  which  the 
proceedings  are  being  had  is  repealed  before  the  order  or  decree 
is  executed,  a  sale  made  afterwards  is  void.* 

§  476.  Likewise  sales  made  at  a  great  and  unreasonable 
length  of  time  after  making  the  order  or  decree,  and  sales 
made  after  the  lapse  of  such  time  as  is  by  statute  allowed  for 
the  order  to  remain  in  force,  are  void.^ 

§  477.  So  a  sale  of  lands  not  included  in  the  decree  is  as  to 
such  lands  void." 

§  478.  And  an  administrator's  sale  of  lands  to  raise  funds 
merely  to  pay  costs  and  expenses  is  void,  though  by  order  of 

'  Morrow  v.  Weed,  4  Iowa,  77;  Little  v.  Sennett,  7  Iowa,  324;  Long  v. 
Burnett,  13  Iowa,  28 ;  Parker  v.  Kane,  22  How.  14 ;  Voorhees  v.  Jackson, 
10  Pet.  449;  Griffin  v.  Bogart,  18  How.  158;  Draper  v.  Bryson,  17  Mo.  71; 
Grignon's  Lessee  v.  Astor,  2  How.  242;  Miller  v.  Sherry,  2  Wall.  237;  Doc 
V.  Harvey,  3  Ind.  104;  Bennett  v.  Owens,  8  Eng.  177;  Saltonstall  v.  Riley, 
28  Ala.  1G4;  Benningfiekl  v.  Reed,  8  B.  Mon.  102;  Field  «.  Goldsby,  28  Ala. 
218;  Tomlinson  v.  McKay,  5  Gill.  256;  BosAvell  v.  Sharp,  15  Ohio,  447; 
Merrill  v.  Harris,  G  Foster,  142 ;  Jackson  v.  Robinson,  4  Wend.  440 ;  Cockcy 
V.  Cole,  28  Md.  27G. 

■  Shriver's  Lessee  v.  Lynn,  2  How.  43 ;  Morris  v.  Hoglc,  37  111.  150. 

'  McLaughlin -y.  Janncy,  G  Gratt.  G08. 

*  Ludlow  V.  Wade,  5  Ham.  494;  Campau  v.  Gillett,  1  Mann.  (Mich.)  41G; 
Perry  v.  Clarkson,  IG  Ohio,  571 ;  Bank  of  Hamilton  v.  Dudley,  2  Pet.  492. 

'Marr'U.  Boothby,  19  Maine,  150;  Wclman  v.  Lawrence,  15  Mass.  326; 
Mason  V.  Ham,  36  Maine,  573. 

6  Shriver's  Lessee  v.  Lynn,  2  How.  43 ;  Ryan  v.  Dox,  25  Barb.  440. 


VOID   JUDICLVL    S.VLES.  175 

court. ^  Likewise  a  sale  is  void  if  made  on  different  notice 
tlien  that  ordered  in  tlie  decree." 

§  479.  In  Iowa,  it  is  provided  hy  statute  that  a  guardian's 
sale  of  a  ward's  lands  under  order  or  decree  of  court  shall  "  not 
be  avoided  on  account  of  any  irregularity  in  the  proceedings, 
provided  it  shall  appear :  First — That  the  guardian  was  licensed 
to  make  the  sale  by  a  court  of  comj)etent  jurisdiction.  Second — 
That  he  gave  bond  (approved)  in  case  one  was  required  by  the 
court  granting  the  license.  Third — That  he  took  the  oath  pre- 
scribed by  the  statute.  Fourth — That  he  gave  notice  of  the 
time  and  place  of  sale,  etc.  Fifth — That  the  premises  were 
sold  accordingly  at  public  auction,  and  are  held  by  one  who 
l)urchased  them  in  good  faith."  The  Supreme  Court  of  that 
state  construe  these  provisions  to  mean  that  "  the  sale  shall  not 
be  avoided  for  any  irregularities,  except"  in  the  foregoing- 
particulars,  and  therefore  that  it  "  may  be  avoided  on  account 
of  irregularities"  in  said  particulars;  that  is,  if  it  does  not 
appear  that  said  requirements  were  complied  with.^  And 
where  it  did  not  appear  from  the  record  that  the  administrator 
making  the  sale  took  the  oath  so  required,  the  sale  was  holden 
to  be  absolutely  void.^ 

§  480.  In  the  same  state  where  the  notice  of  application 
for  order  of  sale  was  for  one  tract  of  land  and  the  license  to 
sell,  notice  of  sale,  and  deed,  were  of  another  and  difll^-ent  tract, 
the  court  held  the  sale  void  for  want  of  jurisdiction  to  grant 
the  license  to  sell.^ 

§  481.  A  sale  made  in  probate  without  petition  or  notice, 
or  other  means  of  conferring  jurisdiction,  though  a  decree  be 
made  on  tlie  report  of  the  administrator,  is  void  and  parol 

'  Dubois  V.  McLean,  4  ^McLean,  48G;  Summer  v.  Williams  8  Mass.  200; 
Saud  v.  Granger,  12  Barb.  392 ;  Bishop  v.  Hampton,  15  Ala.  7G1 ;  Tanner  v. 
Dean,  24  Mo.  10. 

-  Glen  V.  Wotten,  3  Md.  Ch.  Decis.  514;  Eeynolds  v.  Wilson,  l.j  111.  394. 

3  Cooper  V.  Sunderland,  3  Clarke  (Iowa,)  114,  137,  138;  Thornton  v.  Mul- 
quinne,  12  Iowa,  549,  554. 

*  Ibid. 

^  Frazicr  v.  Stccnrod,  7  Clarke,  (Iowa,)  330. 


17G  JUDICIAL   AND   EXECUTION   SALES. 

evidence  may  not  snpplv  tlie  defect  if  contradictory  to  the 
record. ^ 

§  482.  But,  altliough  tlie  funds  arising  from  the  sale  are 
required  to  be  applied  in  a  particular  manner,  yet  it  is  not 
incumbent  on  a  lonafide  purchaser  nnless  required  of  bim  by 
the  statute  to  see  them  so  aj)plied.2 

§  4S3.  A  sale  made  on  a  void  decree  in  proceedings  of  fore- 
closure of  a  mortgage  is  absolutely  void.  In  HarsJiey  v.  Black- 
riiarr,^  where  there  was  neither  actual  or  constructive  service  of 
the  original  process  nor  voluntary  appearance  by  defendant, 
but  an  unauthorized  attorney  appeared  and  answered  for  the 
defendant,  the  court,  on  application  to  vacate  or  relieve  from  a 
sale  in  such  proceeding  held  that  the  decree  of  foreclosure  was 
nullity,  and  that  the  sale  was  void. 

§  484.  The  sale  in  this  case  was  made  on  a  species  of  special 
execution  under  the  statute,  but  the  principle  is  equally  appli- 
cable if  the  sale  were  on  the  decree  itself.  The  statutory  execu- 
tion is  but  a  substitute  for  the  decree  in  the  hands  of  the  officer, 
and  describes  the  property  to  be  sold.  In  Mississippi  it  is 
lield  that  there  must  be  notice  of  application  to  all  the  heirs 
in  an  administrator's  order  of  sale,  or  else  the  order  and  sale 
are  void.^  And  so,  too,  the  sale  is  void  if  made  without  the 
necessary  bond. 

§  485.  Such,  also,  is  the  ruling  in  Indiana.  \\iHaioTdns  v. 
HaicMns,^  the  doctrine  is  fully  declared  that  a  sale  of  real 
estate  by  an  administrator  on  an  order  obtained  without  notice 
to  the  heirs  is  void,  although  confirmed  by  the  court.  In  tliis 
case  the  court  say:  "  It  is  settled  in  this  state  that  a  sale  of  real 
estate  by  an  administrator,  w^ithout  notice  to  the  heirs,  though 
it  be  ordered  and  confirmed  by  the  court,  is  void.  Babbitt  v. 
Doe,  4  Ind.  355;  Doe  v.  Anderson,  5  id.  33;   Doe  v.  Bowen,  8 

'  Bisliop  V.  Hampton,  15  Ala.  761 ;  Tlioruton  v.  Mulquinuc,  12  Iowa,  549. 

"^  Cochran  v.  Van  Surlay,  20  Wend.  3G5. 

^  20  Iowa,  IGl;  and  see,  Shelton  v.  Tiffin,  6  How.  1G3.  In  the  latter  case 
theU.  S.  Supreme  Court  say,  the  judgment  must  be  "  considered  a  nullity," 
and  "  did  not  authorize  the  seizure  and  sale  "  of  the  property. 

*  Hamilton  v.  Lockliart,  41  Miss.  4G0. 

»  Hawkins  v.  Hawkins,  28  Ind.  GG. 


KETURX    OF    THE    TURCIIASE   M0N]:Y.  177 

id.  197;    Gerrard  v.  Johnson,  12  id.  G3G;    Wort  v.  Finlj,   S 
Blackf.  335;  Bliss  v.  Wilson,  4  id.  1G9." 

§  4SG,  The  case  cited  from  G  Howard,  Shelton  v.  Tiffany, 
in  which  a  judicial  sale  was  declared  void,  was  in  reference  to  a 
sale  made  in  an  adversary  proceeding  without  notice,  when  on 
general  principles,  notice  was  required.  It  is  parallel,  however, 
witli  the  Indiana  cases,  cited  above,  in  this,  that  by  statute  in 
Indiana,  actual  notice  is  required,  in  probate  jiroceedings,  to 
sell  lands.  Such,  too,  is  the  ruling  in  Mississippi.  In  pro- 
ceedings in  2)robatc,  to  sell  lands,  want  of  notice  avoids  the 
sale.i 

IV.     Iletukx  of  the  PuRcrixiSE  Money. 

§  487,  The  better  authority  seems  to  be,  that  one  buying 
at  judicial  sale,  Avhere  the  principle  of  caveat  emptor  prevails, 
is  not  entitled  to  relief,  (except  as  for  mistake  or  fraud,)  on 
tailure  of  title  to  the  proj)erty  purchased,  after  comj)letion  of 
sale  and  payment  of  the  purchase  money.- 

§  488.  In  Ohio  it  is  held  that  the  purchase  money  paid 
upon  a  void  sale  of  a  decedent's  lands,  constitutes  Jio  charge 
"upon  the  land  in  the  hands  of  the  heirs,  nor  can  it  be  recovered 
of  the  heirs.  3 

§  489.  In  Yirginia  the  contrary  has  been  held  as  to  the 
charge  against  the  land.  In  Hardin  v.  Iltidgins,^  it  was 
holden  that  on  fiiluro  of  title  the  purchaser  should  be  subro- 
gated to  the  rights  of  the  creditor,  and  that  the  j)urchase  money 
paid  by  the  purchaser  became  a  lien  on  the  land  as  it  was 
originally  a  charge  thereon.     And  so  in  Mississippi,^ 

§  490.  Uut,  in  a  late  case  in  Yirginia,  where  one  purchased 
land  at  judicial  sale,  with  knowledge  of  facts  which  render  the 
sale  inoperative,  and  whose  purchase  was  confirmed  without 

'  Gwiu  V.  McCniToll,  1  S.  &  M.  3.j1  ;  Campbell  v.  Brown,  G  How.  230. 

=  The  Monte  Allegrc,  9  Wlica.  GIG;  Bingham  v.  Mancey,  15  III.  295;  and 
see,  Ante.  Pt.  1st  Chap.  9,  iS'o.  4,  of  this  work,  where  the  authorities  are 
leferred  to  more  numerou.sl3'. 

'^  Nowlcr  V.  Coit,  1  Ham.  519. 

*  6  Gratt.  320. 

'  Grant  v.  Loyd,  12  S.  &  ]\[.  191. 
12 


ITS  JUDICI^Vl,    AND    EXECUTION    SALES. 

objection  on  liis  part,  it  was  held  tliat  he  ^vould  not  be  relieved 
on  tlic  mere  gronnd  of  failure  of  titleJ  Yet,  querc?  If  tlio 
pnrcliase  money  is  still  in  the  hands  of  the  administrator,  and 
the  purchaser  has  bought  without  knowledge  of  the  defects, 
if  equity,  on  feilure  of  title,  will  not  cause  tlic  money  to  be 
refunded." 

§  491.  In  Tennessee  it  is  held  that  tlie  money  may  be  reco^■- 
ered  back  before  conveyance  is  made,  on  discovery  of  a  defect 
in  the  title. ^  And  in  Mississippi,  where  the  sale  j)TOved  to  be 
void  for  want  of  authority  in  the  administrator  to  mal^e  it,  tlic 
court  allowed  that  fact  in  evidence  for  defendant  in  an  action 
against  for  the  j^nrchase  money  to  show  failure  of  considera- 
tion.'^ And  so  in  the  same  state,  where  an  executor's  sale  was 
set  aside  for  fraud  after  payment  by  tlie  pui'chaser,  the  court 
allowed  him  a  lien  for  the  money  on  the  premises.  ^ 

§  402.  And  so  in  Maine,  in  the  case  of  a  void  judicial  sale, 
it  was  held  that  the  purchaser  had  his  action  against  the 
guardian  for  recovery  of  his  money  back,  the  invalidity  of  the 
sale  being  caused  by  the  omission  of  the  guardian  to  give  tli(> 
bond  whicli  was  required  by  the  statute  before  selling. °  But 
in  the  case  cited  from  Maine,  it  seems  that  the  deed  contained 
covenants  of  warranty.  The  language  of  tlic  court  is,  that 
'"  it  can  be  recovered  back  of  the  guardiaii  uj^on  his  covenants 
in  the  deed,  or  in  an  action  for  money  liad  and  received  l>yhim 
for  their  benefit." 

'  Yonng  X.  Bowycr,  9  Gratt.  oOO. 

-  Mockbec  «.  Gardner,  2  Ilarr.  &  G.  17G,  177.  Such  is  tlie  intimation  of 
Archer,  Justice,  in  the  case  just  cited;  but,  for  as  much  as  it  Avas  not 
made  to  appear  -wlictlicr  tlie  purcliasc  money  Avas  still  in  the  administra- 
toi''s  hands  or  not,  the  court  made  no  absolute  ruling  on  that  point. 

s  Read  r.  Fite,  8  Humph.  328. 

■*  Campbell  r.  Brown,  (i  How.  Miss.  230;  Lau.irhmau  r.  Thompson,  G  S.  & 
jr.  259. 
/Grant  v.  Lloyd,  12  S.  &  M.  191. 

*  "Williams  r.  Morton,  38  Maine,  47,  51. 


PART  TIIIllD. 

JUDICIAL  SALES  OF  PERSONAL  PPOPERXr,  COR- 
POPATE  FPANCniSES,  PPOPEPXr  AKD  STOCKS. 


CKAPTEP    XIII. 

JUDICIAL  SALES  OF  PERSONAL  PROPERTY. 

T.      IX  ADMir.AI/l'Y. 

II.    At  Law. 

I.       Ix    AD^nilAI.TV. 

§  491.  Judicial  sales  of  personal  property  occur  whenever 
and  in  whatever  court  such  proj^erty^is  seized  or  laid  hold  of 
liy  judicial  process  and  decree  i)i  rem^  and  is  sold  on  such 
decree,  without  regard  to  personal  judgment  against  the  owner. 
Sales  in  admiralty  in  proceedings  in  rem  arc  strictly  such.  In 
the  language  of  the  learned  Justice,  Pedfield,  they  "are 
strictly  judicial,  1  and  are  merely  carrying  into  sjDCcific  execu- 
tion a  decree  of  the  court  in  rem,  which,  by  universal  consent, 
binds  the  whole  world."-  If  jurisdiction  has  attached,  then  bv 
such  sale  the  property  passes  to  the  j^urchascr  by  operation  of 
law;  "  all  the  world  arc  parties,"  and  arc  bound  thereby. ^ 

'  Griffith  ».  Fowler,  IS  Vt.  390,  394. 

•■'  Griffith  v.  Fowler,  18  Vt.  390,  394;  The  Monte  Allcgrc,  9  Wheat.  GKJ: 
lli^ht  i\  Steamboat  Henrietta,  4  Iowa,  472,  475 ;  Phegley  «.  Tatuni,  33  Mo. 
40 1 ;  The  ]Mary,  9  Crauch,  126,  Story,  Confl.  Laws,  Sees.  592,  508 ;  The  Mary 
Anne,  Ware  C.  C.  104;  Croudson  «.  Leonard,  4  Cranch,  434;  Gclsou  r. 
lloyt,  3  Wheat.  24G,  313;  French  t>.  Hall,  9  N.  IL  137;  3  Kent,  Com.  132; 
Penhallowp.Doane,3  Dall.  8G;  3Bac.  Abt.  74;  Benedict,  Adm.  Sec.  3G4, 434; 
The  Commander-in-Chief,  4  Wall.  52;  McCall  c.  Elliott,  Dudley  (S.  C.)  250: 
Singleton  v.  llcrriott,  Dudley  (S.  C.)  254. 

'  Grignon's  Lessee  v.  Astor,  2  How.  338;  Beauregard  v.  Xew  Orleans,  IS 
flow.  497,  502,  403;  Benedict,  Adm.  Sec.  304,  434. 

(179) 


ISO  JUDICLVL   AXD   EXECUTION   SALES. 

§  405.  Ill  admiralty  cases  purely  in  rem  the  jurisdiction  is 
exclusively  in  the  courts  of  the  United  States. '  If  the  prop- 
erty he  within  the  territorial  jurisdiction  of  the  court  and 
there  he  the  proper  lihel,  information,  or  plaint,  to  confer 
jurisdiction  of  the  particular  case,  and  it  he  actually  seized 
upon  the  ju'ocess  of  the  court,  then  whatever  action,  decision, 
or  sale,  is  had  in  respect  to  it  is  binding  on  all  tlie  world,  and 
will  be  so  regarded  in  every  other  tribunal  and  country,  unless 
set  aside  6r  reversed  by  some  appellate  tribunal  competent  to 
review  the  same."  And  though  it  is  liolden  in  many  cases  of 
high  authority  that  such  validity  will  not  be  conferred  unless 
there  be  notice  to  the  parties  interested  in  the  property  seized, 
so  that  they  may  defend  such  interest;^  yet,  in  proceedings  in 
rem,  the  notice  is  served  on  the  thing, '^  and  it  is  questionable, 
except  as  to  foreign  courts,  whether  the  omission,  where  the 
proceedings  are  in  personam  also  as  well  as  in  rem,  will 
amount  to  more  than  mere  error  and  cause  for  reversal  of 
judgment  against  the  same,  if  jurisdiction  over  the  proi:)erty 
has  by  proper  proceedings  and  seizure  actually  attached.^ 
Eut  for  a  judgment  in  2'>crsonam,  want  of  notice  is  want  of 
validity. 

'The  Belfast,  7  Wall.  024;  Brighlly  Dig.  24 ;  Stratton  «■.  Jarvis,  8  Pot. 
11;  Mitchell  t.  Stcamhoat  Magnolia,  4.j  310.  G7;  Phcgley  v.  Tatum,  33 
Mo.  4G1. 

-The  Siren,  7  Wall.  102;  The  Propeller  Commerce,  1  Black.  5S1;  The 
PiCindeer,  2  Wall.  385,  388,  403;  Phegleyw.  Tatum,  33  Mo.  4G1;  Story,  Confl. 
of  Laws,  Sees.  502,  503 ;  Croutlson  v.  Leonard,  4  Crauch.  434 ;  Monroe  v. 
Douglass,  4  Sandf.  Ch.  180;  Whitney  v.  Walsh.  1  Cush.  29;  Grant  r. 
McLachlin,  4  Johns.  34;  The  Mary  Anne,  Ware  C.  C.  104;  Holmes  v. 
Tlemsen,  20  Johns.  229;  Barrow  «.  West,  23  Pick.  270;  Peters  v.  Ins.  Co.  3 
Sumner  C.  C.  389;  Magoun  x.  Ins.  Co.  1  Story  C.  C.  157;  Williams  •».  Arm- 
royd,  7  Cranch,  423;  Bradstrcot  t.  Ins.  Co.  3  Sumner  C.  C.  GOO;  2  Greenleaf 
Ev.  Sec.  541. 

■•'  Bradstreet  v.  Ins.  Co.  3  Sumner  C.  C.  600 ;  ^lonroe  v.  Douglass,  4  Sandf. 
CIi.  180;  Story,  Confl.  of  Laws,  Sec.  592 . 

*  Benedict  Adm.  Sec.  3G5. 

'-  AVilliamsB.  Armroyd,  7  Cranch,  423,  003;  Grignon's  Lessee  v.  Astor,  2 
How.  338;  Beauregard  v.  New  Orleans,  18  How.  407;  Iverson  v.  Loberg,2G 
111.  182;  Thompson  x.  Tolmie,  2  Pet.  1G7;  Parker  %\  Keene,  22  How.  14; 
U.  S.  V.  Arrcdondo,  G  Pet.  700 ;  The  Globe,  2  Blatch.  C.  C.  427. 


IN    ADMIRALTY.  181 

§  49G.  Bciiiir  made  by  order  of  the  court  such  sales  arc  not 
within  the  statute  of  frauds.^ 

§  497.  The  form  of  proceedings  in  courts  of  admh-alty  in 
matters  of  ordinary  admiralty  jurisdiction  is  in  conformity  to 
the  civil  and  maritime  law;  but  the  powers  exercised  in  dis- 
pensing justice  and  settling  rights  of  projDorty  are  those  of 
courts  of  equity;  and  justice  is  administered  upon  equity 
principles.-  Therefore  in  their  orders  and  decrees  in  proceed- 
ings in  rem  the  courts  act  upon  the  thing  or  property  itself, 
which  is  the  subject  matter  of  the  proceeding ;3  and  sales 
thereon  are  judicial  sales,  as  is  herein  before  stated,  in  their 
strictest  sense. 

§  498.  The  principle  is  fully  settled  that  the  seizure  and 
sale  of  vessels  in  cases  purely  in  admiralty,  in  the  courts  of 
admiralty,  by  proceedings  hi  rem,  divests  all  j)rior  liens  and 
claims  whatever;  and  that  the  holders  thereof  must  look  to  the 
fund  in  court  arisinc:  from  the  sale  for  such  riojlits  as  the  nature 
of  their  claims  may  command,  which  fund  is  subject  to  dis- 
tribution by  the  court.'* 

§  499.  In  such  proceedings  and  sales  against  the  i^roperty 
itself,  the  validity  of  the  sales  does  not  depend  upon  any  per- 
sonal judgment  against  the  owner  or  master,  but  the  proceed- 
ing is  purely  in  rem,  and  of  which  the  United  States  court 
have  exclusive  jurisdiction  in  admiralty  cases.  The  decree  is 
against  the  property  itself,  and  all  the  world  are  barred  by  the 
decree  and  sale.'' 

§  500.  In  Williams  v.  Armroyd,'^  that  great  jurist,  Mar- 
shall, Chief  Justice,  holds  the  follow^ing  language  on  the 
subject  of  force  of  sales  in  admiralty:     "  It  appears  to  be  set- 

'  The  Monte  Allegre,  9  Wheat.  CIG. 

-  Plummer  ti.  Webb,  4  Mason,  380,  387;  1  Kent  Com.  354:  •,  Delovio  v.  Boit, 
2  Gallison,  398;  1  Briglitly  Dig.  25;  3  Grceulcaf,  Evid.  Sec.  389;  Benedict, 
Adm.  Sec.  358. 

^  Benedict,  Adm.  Sec.  359. 

*  Remnants  in  Court,  Olcott,  383;  Bracket  v.  The  Hercules,  Gilp.  IS-i; 
Harper  v.  The  New  Brig,  Gilp.  530;  The  Amelia,  6  Wall.  18. 

5  The  Mary  Anne,  Ware  C.  C.  104;  The  Siren,  7  Wall.  153;  Williams  ». 
Arraroyd,  7  Cranch,  433;  Benedict,  Adm.  Sec.  304. 

«  7  Cranch,  433,  433,  434. 


1S3  JUDICIAL   AND  EXECTTION    SALES. 

tied  in  tills  country  tliat  the  sentence  of  a  competent  court, 
proceeding  i}i  rem^  is  conclusive  in  respect  to  thing  itself,  and 
operates  as  an  absolute  change  of  the  property.  By  such 
sentence  the  right  of  the  former  owner  is  lost,  and  a  complete 
title  given  to  the  person  who  claims  under  the  decree.  No 
court  of  co-ordinate  jurisdiction  can  examine  the  sentence. 
The  question,  therefore,  respecting  its  conformity  to  general 
municipal  law  can  never  arise,  for  no  co-ordinate  tribunal  is 
capable  of  making  inqniiy."  This  case  involved  title  u.nder  a 
government  sale  of  vessel  and  cargo  made  at  St.  Martins,  by  an 
order  of  decree  of  the  Governor;  and  although  such  decree 
was  repudiated  by  our  government  as  in  violation  of  interna- 
tional and  maritime  law,  yet  as  Congress  liad  not  gone  so  far 
as  to  declare  the  sale  void  and  require  it  to  be  so  treated  in 
our  courts,  the  Supreme  Court  felt  bound,  on  principles  of 
maritime  law,  to  treat  it  as  of  binding  force  and  to  recognize 
the  validity  of  the  sale.  Upon  this  branch  of  the  subject  the 
learned  judge,  in  the  same  case,  gives  the  opinion  of  the  court 
in  the  following  terms:  "The  sale  was  made  on  the  applica- 
tion of  the  captor,  and  the  possession  of  the  vendee  is  a  con- 
tinuance of  his  possession.  The  capture  is  made  by  and  for 
the  government,  and  the  condemnation  relates  back  to  the  cap- 
ture and  affirms  its  legality."  Then  again  in  the  same  case 
the  court  remark  that,  "  If  an  erroneous  judgment  binds  the 
property  on  which  it  acts,  it  will  not  bind  that  property  less 
because  its  error  is  apparent.  Of  tliat  error  advantage  can  be 
taken  only  in  a  court  which  is  capable  of  correcting  it."^ 

§  501.  In  maritime  cases,  in  the  United  States  court,  it 
matters  not  to  the  contrary  tliat  the  sale  be  made  on  a  species 
of  execution  and  by  the  ordinary  ministerial  officer,  the  sale  is 
nevertheless  a  judicial  sale.  The  WT-it  is  but  a  statutory  method 
of  executing  the  decree  or  judgment  of  condemnation  and^ 
order  of  sale;"  unlike  the  ordinary  execution  it  points  out  the 

'  Williams  v.  Armroyd,  7  Cranch,  423,  433,  434. 

2  Conk.  Dig.  1st  Ed.  388;  Act  of  Congress,  March  2,  1799,  Sec.  DO.  In 
England  the  sale  is  by  a  commissioner  of  the  court.  Abbott  on  Shipping, 
1G3  In  the  United  States  coiu'ts  by  the  marshal.  lb.  1C3.  Griffith  v^ 
Fowler,  18  Vt.  390,  394. 


AT    lAW. 


18:5 


property  to  be  sold.  No  levy  is  necessary  and  the  proceeds  of 
sale  arc  to  be  returned  into  court  to  be  disposed  of  as  that 
tribunal  may  directs  The  officer  is  the  mere  agent  of  the 
court  to  carry  its  order  and  authority  into  efl'ect.- 

II.     At  Laav. 

§  502.  And  so  proceedings  in  the  state  courts  for  tlie 
enforcement  of  liens  and  pledges  against  boats  and  vessels, 
and  other  j^er^^onal  property,  not  maritime  in  their  nature,  are 
Avithin  the  ordinary  equity  poTrers  of  chancery  courts,  whether 
such  liens  rest  upon  express  contract  or  arise  by  implication 
of  law.  To  that  end  such  courts,  on  application  by  bill  or 
petition,  if  equity  shall  require  it,  will  decree  a  sale  of  the 
property  to  satisfy  the  debt,  and  will  cause  such  decree  to  be 
carried  into  effect  by  the  appointment  of  a  commissioner  or 
master  to  conduct  the  sale,  and  he  is  to  produce  in  com-t  the 
fund  arising  therefrom,  subject  to  the  final  order  of  the  court.-' 

§  503.  Such  proceeding  being  in  rem,  the  jurisdiction 
(unless  so  enlarged  by  statute)  does  not  extend  to  the  making 
of  any  personal  order  or  decree  against  the  owner  of  the  prop- 
erty in  case  the  fund  arising  from  the  sale  be  insufficient  to 
satisfy  the  demand.'^ 

§  504.  Some  of  these  cases  are  kindred  in  their  nature  to 
admiralty  cases,  as  for  instance  proceedings  '?;i  rejji  against 
water  crafts,  under  state  laws,  to  enforce  liens  or  else  to  obtain 
and  enforce  liens  against  such  crafts  for  material  and  supplies 
furnished  in  home  ports,  which  do  not  come  within  the  admi- 
ralty jurisdiction  of  the  United  States. 

'  The  Phebe,  Ware  C.  C.  854;  Andrews  v.  Wall,  3  How.  5G8,  573;  Act  of 
Congress,  March  2, 1790,  Sec.  00;  Conklin  Digest,  1st  Ed.  388;  The  Siren,  7 
Wall.  152. 

*  Hurst  V.  Stull,  4  Md.  Ch.  Dec.  391,  393;  Inglehart  v.  Armgs.,  1  Bland. 
527;  Mason  v.  Osgood,  64  N.  C.  467, 468;  Bozzai\  Rowe,30  111.  198;  Armor 
tJ.  Cochran,  G6  Penu.  St.  308;  Coffee  v.  Coffee,  16  111.  145;  Moore  v.  Shultz, 
13  Penn.  St.  103;  Sowards  v.  Pritchett,  37  111.  517. 

=  Black  V.  Breuuan,  5  Dana  (K).  311,  313;  2  Story  Eq.  Jur.  Sec.  1033;  4 
Kent  Com.  139;  Ambler  v.  Warwick,  1  Leigh.  495,  205,  207,  2  Ililliard  oii 
Mortgages,  Appendix  No.  1,  Sec.  38. 

*  Black  V.  Brennan,  5  Dana  (Ky.)  311,  312. 


184  JUDICIAL   AND    EXECUTION    S.ULES. 

§  505.  The  eftect  of  sucli  proceedings  and  sale  thereof  varies 
ill  the  several  states  under  the  impress  of  local  law.  But  there 
are  certain  principles  that  run  alike  through  the  whole.  The 
vessel  must  be  within  the  territorial  jurisdiction  of  the  court 
or  jurisdiction  cannot  be  obtained;  and  being  so  within  such 
jurisdiction,  then  jurisdiction  over  the  thing  actually  attaches 
by  corporal  seizure  thereof  under  the  process  of  the  court,  and 
continues  only  during  such  corj^oral  restraint  and  possession, 
unless  released  under  some  provision  of  law,  as  on  forthcoming 
bond  or  other  similar  provisions. ^ 

§  506.  In  such  ^proceedings  in  rem  under  state  laws,  it 
matters  not  whether  the  proceedings  purport  in  form,  to  be  at 
law  or  in  chancery,  or  in  neither  one  or  the  other  exclusively, 
as  in  some  modern  creations  of  pleadings.  In  either  case  the 
order  of  condemnation  and  sale  is  made  and  is  executed  in  the 
exercise  of  more  or  less  equity  power,  and  the  sale  being  made 
by  express  adjudication  of  the  court  pointing  out  the  property 
to  be  sold  is  judicial  in  its  character.  The  property  is  already 
in  custody  of  the  court  by  tlie  original  seizure,  and  judgnaent 
of  condemnation,  and  sale.  JSTo  new  levy  is  necessary;  and 
whether  the  sale  be  conducted  by  the  sheriff  or  by  a  master, 
the  result  is  the  same.  It  is  the  carrying  out  the  order  of  the 
court,  and  not  the  exercise  of  any  separate  authority  irrespect- 
ive of  such  order  and  ministerial  in  character. 

§  507.  A  hona  fide  purchaser  of  personal  property,  at  a  sale 
purely  judicial,  as  one  made  on  a  seizure,  condemnation  and 
order  of  sale  of  a  water  craft  in  proceedings  in  rem,  under  the 
.statute  for  enforcing  claims  agains  boats,  takes  the  title  to  the 
property  in  Ohio,  free  from  all  ordinary  liabilities.  The  seiz- 
ure on  process  creates  a  lien,  and  the  proceedings  perfected  by 
condemnation  and  sale  cuts  off  all  existing  claims  or  mere 
liabilities  which  are  not  in  themselves  liens  entitled  to  priority.^ 
The  case  last  cited  was  a  proceeding  under  the  Oliio  statute, 
which  gives  the  creditor  the  right  to  proceed  against  the  owner 
or  master  of  a  water  craft,  "or  the  craft  itself,"  and  provides 
for  its  seizure  and  detention,  and  for  its  subsequent  sale  ou 

'  Bnidstrcct  v.  Ins.  Co.  3  Sumner  C.  C.  GOO. 
"^  Jones  x.  Steam  Boat  Commerce,  14  Ohio,  408. 


AT   LAW.  185 

execution  to  satisfy  tlio  judgment  of  tlie  court.  The  Supreme 
Court  of  Oliio  say:  "From  the  time  of  this  seizure  a  lien  is 
created,  the  property  is  bound  and  may  be  sold  on  execution." 
The  court  remark  that  this  construction  of  the  act  aids  "  the  vigi- 
lant creditor,  by  allowing  to  him  the  same  advantage  that  one 
secures  to  himself,  by  making  a  levy  on  personal  property." 
And  that  "  the  lien  first  attaching  by  virtue  of  the  seizure  will 
be  first  satisfied,  and  so  on  in  the  order  of  priority,"  if  the 
proceeds  of  sale  are  more  than  the  amount  of  the  first  lien  and 
costs.  "The  first  judicial  sale  (say  the  court)  then,  must  pass 
the  entire  interest  and  vest  in  tlie  purchaser  a  perfect  title." \ 

§  508.  In  the  case  of  Phegley  v.  Tatum,'^  cited  from  Mis- 
souri, the  Supreme  Court  of  that  state  recognizing  the  rule  in 
Admiralty  courts  of  exclusive  jurisdiction  of  maratime  liens, 
and  that  all  the  world  are  bound  by  their  action  in  rem  upon 
such  subjects,  denies  that  there  is  any  analogy  between  such 
and  suits  prosecuted  in  the  state  courts  of  that  state  to  enforce 
liens  a2:ainst  boats  and  vessels  under  the  local  statute.  The 
court  say,  of  sales  in  the  regular  court  of  Admiralty:  "Such 
sales  are  not  made  for  the  benefit  of  every  particular  creditor, 
but  for  the  benefit  of  all  persons  interested."  -  '^  "'''  "  The 
proceeding  is  entirely  in  rem  and  all  the  world  are  bound  by 
it."  Whereas,  the  benefits  of  the  Missouri  statute  "are  con- 
fined to  ]3ersons  in  Missouri,  or  making  contracts  in  Missouri;" 
and  the  "  efiect  of  a  sale  under  the  Missouri  law,"  is  to  "  divest 
only  the  liens  existing  unaer  that  law."  Therefore,  that  as 
sales  in  Missouri  do  not  afiect  the  liens  of  strangers  resident 
in  Illinois  or  other  states,  but  as  against  such  persons  operate 
only  as  would  private  sales,  so,  on  the  other  hand,  like  sales 
under  the  statutes  of  other  states  are  not  maintainable  in  Mis- 
souri, as  against  liens  existing  under  the  statute  of  Missouri. 
Such  too  is  virtually  the  ruling  in  Iowa,  in  reference  to  liens 
arising  under  the  laws  of  Missouri. 

§  500.  Under  the  Ohio  statute  the  claim  against  the  water 
craft  is  not  j^a^  so  a  lien,  nor  does  tlie  statute  make  it  a  lien ; 

'  Jones  X).  Steam  Bocit  Commerce,  14  Oliio,  411,  112. 
*  Phegley  v.  Tatum,  33  Mo.  401,  460,  407 ;  Ilight  v.  Steam  Boat  IleuricUa, 
4  Iowa,  437,  475. 


ISG  JUDICIAL    A.MD    EXECUTION    SALES. 

Ijiit  merely  provides  a  way  by  wliicli  a  lien  may  be  obtained. 
That  is  by  seizure  on  process  in  accordance  with  the  provisions 
of  the  statute. 

§  510.  Whether  such  seizure  and  sale  will  cut  off  prior  liens 
already  existin^^,  is  not  expressly  determined  in  the  case  above 
referred  to ;  but  the  court  declare  such  sale  to  be  unlike  a  pri- 
vate sale,  wherein  the  purchaser  takes  only  the  interest  of  the 
vendor  and  holds  the  property  as  the  vendor  lield  it  in  all  pur- 
chases where  the  purchaser  bad  notice  of  a  claim  against  the 
same  at  the  time  of  his  private  purchase.  The  claim  follows 
the  boat  in  whomsoever  hands  the  vessel  goes,  whether  l)y  pri- 
vate sale  or  hire  and  is  capable  to  be  matured  by  judicial 
proceedings  into  a  lion  against  it.  But  claims  that  arc  not  so 
matured  are  cut  olf  by  a  seizure  and  judicial  sale,  just  as  a  prior 
attachment  over-reaches  a  subsequent  one.  In  the  language 
of  the  court:     "The  judicial  sale  is  the  act  of  the  law."^ 

§  511.  This  equitable  jurisdiction  extends  only  to  the  enforce- 
ment of  the  lien, 2  and  does  not  authorize  any  order  or  decree 
against  the  person. 

§  512.  In  cases  of  bailment  where  the  lien  is  for  benefits 
bestowed  or  labor  performed  on  the  property,  the  expenses  of 
subsequent  keeping  attach  to  the  liability  and  become  a  part 
of  the  lien,  whenever  the  party  has  a  right  to  retain  possession 
as  security  for  liis  demand.  He  lias  "  a  lien  upon  the  property 
itself  for  the  re-imbursement  of  bis  reasonable  expenditures 
in  keeping  and  providing  for  it,  though  he  keep  it  merely  for 
bis  own  security." 3  In  the  enforcement  of  the  lien  judicially 
by  decree  and  sale,  these  additional  expenditures  will  be  in- 
cluded and  satisfied  as  if  part  of  the  original  liability,  so  far  as 
they  are  reasonable,  necessary  and  just.  Or  when  the  prop- 
erty is  expensive  to  keep  or  is  perishable,  it  may  be  sold  under 
interlocutory  order  and  the  funds  be  held  to  answer  the  final 
decree.'^ 

'  Jones  V.  Steam  Boat  Commerce,  14  Ohio,  408,  413;  Waverley  v.  Clcmcats 
14  Ohio,  28,37. 

-  Bhick  V.  Brennan,  5  Dana  (Kj-.)  311,  312;  Long  Dock  Co.  v.  Malloiy,  1 
l]eash;y,  94,  9(;. 

="  Bhick  V.  Brennan,  5  Dana  (Ky.)  311,  312. 

*  Black  V.  Brennan,  5  Dana  (Ky.)  313 ;  Long  Dock  Co.  c.Mallory,  1  Boas.  94. 


CIIxiPTEE    XIV. 

JUDICIAL   SALES   OF   COKPOIIATE   FRANCHISES,   mOPERTY 
AND  STOCKS. 

§  513.  Though  the  corporate  riglit  to  operate  a  rail  road 
and  receive  the  earnings  and  tolls,  may  result  from  a  judicial 
sale  and  purchase  under  a  decree  of  foreclosure  and  sale  on  a 
mortgage,  yet,  by  such  decree,  foreclosure  and  sale,  the  cor- 
porate existence  and  franchise  of  such  company  will  not  pass 
to  the  purchaser.  That  is,  "  The  ca23acity  to  have  2:)erpetual 
succession  under  a  special  name,  and  in  an  artificial  form,  to 
take  and  grant  property,  contract  obligations,  and  sue  and  be 
sued  by  its  corporate  name,  as  an  individual,"  are  "franchises 
belonging  to  the  individual  stockholders,"  and  will  not  pass  to 
such  purchaser;  that  although  the  company  "may  be  divested 
of  its  property,  together  with  the  franchise  of  operating  and 
making  profit  from  the  use  of  its  road,  its  corporate  existence 
survives  the  wreck  and  endures  until  the  states  sees  fit  to 
terminate  it  by  a  proper  proceeding."^ 

§  514.  In  the  case  of  Canal  Co.  -y.  Bonliain^^  the  court  hold 
as  follows  in  reference  to  forced  sales  of  such  interests.  See- 
GRt^NT,  Justice:  "The  spirit  of  the  decision  in  Amant  v.  Alex- 
andria and  P'dtsljurglh  Transportation  Company^  seems  to  be 
that  privileges  granted  to  corporations  to  construct  turnj^ike 
roads,  canals,  etc.,  are  conferred  with  a  view  to  public  use  and 
accommodation,  and  that  they  cannot  voluntarily  deprive  them- 
selves of  the  lands  and  real  estate,  and  franchises  which  arc 
necessary  for  that  ^^urpose;  nor  can  they  be  taken  from  them 
by  execution,  and  sold  by  a  creditor,  because,  to  permit  it,  would 

>  Atkinson  v.  The  M.  and  C-  R.  R.  Co.  15  Ohio,  21,  36;  Coe  v.  Columbus, 
Plqua  and  Ind.  R.  R.  Co.  10  Ohio  St.  373 ;  Canal  Co.  ^.  Bonhani,  9  W.  &  S. 
27;  Amant  d.  New  Alexandria  and  Pitts.  Transportation  Co.  13  S.  &  R.  210. 

2  Canal  Co.  t\  Bonham,  9  Watts  &  Scrgt.  27,  28. 

(187) 


ISS  JUDICIAL   AND   EXECUTION   SALES. 

tend  to  defeat  the  whole  object  of  the  charter  by  taking  the 
improvements  out  of  the  hands  of  the  corporation  and  destroy- 
ing their  use  and  benefit."  ^'  "  *  "••  "  Tlie  remedy  for 
creditors,  in  such  case,"  say  the  court,  is  by  sequestration,  as 
was  suggested  by  Chief  Justice  Tilghman,  and  lias  since  been 
provided  for  by  statute. 

§  515.  And  where,  as  in  Ohio,  it  is  by  the  constitution  pro- 
vided that  "the  general  assembly  shall  pass  no  special  act 
conferring  corporate  powers,"  it  is  liolden  that  a  special  act  of 
assembly  declaring  that  such  mortgage  sale  shall  carry  the 
coi'ijorate  franchise  to  the  purchaser,  is  unconstitutional  and 
void ;  and  that  though  the  right  to  operate  the  road  and  receive 
the  proceeds  thereof  would  pass  thereby,  the  sale  being  regular 
in  other  respects;  that  yet,  the  corporate  capacity  and  existence 
still  remained  in  the  stockholders,  and  that  the  attempt  by 
such  act  of  assembly  to  confer  the  corporate  capacity  of  the 
debtor  corporation  on  the  purcliasers  at  such  judicial  sale  was 
tantamount  to  an  attempt  to  create  a  corporation  by  special 
enactment,  and  was  then  inoperative  and  void.  That  what 
the  general  assembly  cannot  do  directly,  it  cannot  do  indirectly. 
The  court  say,  aside  from  this  act  of  assembly:  "It  is  certain 
that  the  mortgagees,  as  such,  were  invested  with  no  corporate 
capacity,  and  it  is  equally  certain  that  a  mere  purchase  at  the 
sale  would  have  invested  them  with  none."  So  that,  without 
the  enactment  it  could  not  pass,  and  that  it  would  not  pass  by 
the  enactment  wdiich  in  itself  was  unconstitutional  and  void.^ 

§  51G.  But  in  Pennsylvania,  under  somewhat  similar  condi- 
tions, the  ruling  is  the  contrary.  There,  the  act  of  assembly, 
after  conferring  power  to  mortgage  the  property  and  franchise, 
declared  that,  "  in  the  event  of  a  sale  being  made  of  the  estate, 
right,  and  franchises  of  said  company,  under  or  by  virtue  of 
the  provisions  of  any  mortgage  created  under  this  or  any  other 
act,  the  purchaser  or  purchasers,  their  associates  and  assigns, 
shall  thereupon  become  a  body  politic  or  corporate  under  the 
name  of  the  "Westchester  Direct  Iiailroad  Company,  and,  as 
such,  be  entitled  to  succeed  to  all  the  estate,  right,  and  privi- 

Atkinsoii  v.  M.  C.  R.  R.  Co.  15  Ohio  St.  21,  30,  38. 


SALES   OF    COKPORATK   FKA^'C1IISKS,    KIC,  ISO 

leges  of  said  company."''  The  court  held  that  a  mortgage  so 
made  under  said  act,  carried  "with  it  the  right  to  have  the 
mortgaged  property  and  franchise  sold  on  nonpayment  of  the 
debt  according  to  the  terms  of  the  obligation.^ 

§  517.  Where,  through  the  fraudulent  acts  and  procure- 
ment of  the  directors  of  a  railroad  company,  its  franchises, 
road,  and  rolling  stock  were  sold  at  judicial  sale,  under  a  mort- 
gage decree  for  a  nominal  sum  compared  with  their  real  value, 
and  thereby  the  just  claims  of  other  creditors  were  to  be  cut 
off  and  their  interests  sacrificed,  it  Avas  held  by  the  Supreme 
Court  of  the  United  States  that  the  purchasers  at  the  mortgage 
sale,  who  had  in  the  meantime  despoiled  the  road  by  taking 
up  and  selling  the  material  at  great  profit,  should  be  "  held 
liable  as  trustees"  to  the  injured  creditors,  "for  the  full  value 
of  tlie  property  purchased  "  at  the  mortgage  sale,  after  deduct- 
ing tlicrefrom  the  amount  of  the  judgment  at  the  day  of  sale 
paid  by  them  and  under  which  they  bought." 

§  51 8.  A  judicial  sale  under  a  mortgage  decree  of  foreclosure 
of  a  railroad  and  its  franchises  will  not  carry  title  to  the  mere 
easement  or  right  of  way  of  the  road  at  places  where  the 
damages  for  the  same,  though  assessed,  have  not  been  paid, 
although  the  mortgage  deed  bo  of  subsequent  date  to  the 
taking  and  occupancy  of  the  easement.  Until  paid  for,  the 
right  to  the  easement  does  not  vest  in  the  company,  and  conse- 
cpiently  there  could  be  no  title  in  the  company  to  the  easement 
at  the  date  of  the  mortijaiye  to  which  the  mortixas^e  lien  could 
attach  as  against  the  original  land  owner,  or  as  against  his 
prior  right  to  enforce  compensation  for  his  damages  for  right 
of  way.  3 

§  519.  Although  as  a  general  principle  in  Pennsylvania,  the 
courts  will  not  assume  chancery  jurisdiction  to  decree  a  mort- 
gage foreclosure,  or  a  foreclosure  and  sale  on  a  mortgage,^  yet 
they  will  do  so  in  cases  of  insolvency,  bankruptcy,  or  death  of 

'  Mcndcnhall  v.  Tlic  Wostchcstcr  and  Phila.  R.  R.  CG  Pcnn.  St.  145  and 
147,  n. 

-  Driiry  v.  Cross,  7  Wall.  299. 

3  Western  Penn.  R.  R.  v.  Johnson,  59  Ponn.  St,  290. 

■*  Bradley  v.  The  Chester  Valley  R.  R.  CO  I'enn  St.  141,  -155 ;  Amherst  v. 
The  ]Montonr  Iron  Co.  C5  Penn.  St.  SO. 


190  ■  JUDICIAL   AXD    KXECUTION    SALES. 

the  mortgagor/  and  will  also  "take  jurisdiction  of  a  trust 
created  in  a  mortgage,  and  will  compel  trustees  to  execute 
whatever  jjowers  have  been  vested  in  them  for  the  benefit  of 
creditors,  even  to  the  sale  of  the  mortgage  premises  on  a  proper 
case  made.  2 

§  520.  But  that  default  to  pay  the  interest,  merely,  on  its 
unmatured  mortgage  bonds,  by  a  railroad  company,  does  not 
authorize  a  decree  comj)elling  the  trustees  in  the  mortgage  to 
exercise  their  powers  of  sale  and  sell  the  road  and  franchises 
of  the  compan}^,  when  their  power  to  sell  is  in  the  mortgage 
based  upon  the  maturity  of  and  defiiult  to  pay  the  bonds. ^ 

§  521.  In  the  case  oiJfendenhall  v.  Westchester  and  PTiila- 
delpliia  It.  R.^'^  the  court  say:  "We  have  already  indicated 
the  general  rule  drawn  from  the  civil  law,  that  nothing  can  be 
conveyed  in  mortgage  except  things  which  may  be  sold.  Tliis 
is  the  reason  why  a  railroad  corj)oration,  holding  its  franchise 
for  public  use,  although  its  tolls  are  for  the  private  benefit  of 
the  stockholders,  can  neither  sell  nor  mortgage  its  franchises." 
(That  is  apart  from  statutory  authority  so  to  do.)  "  But  when 
the  legislature  authorized  it  to  execute  a  mortgage"  to  secure 
a  debt,  such  mortgage  "carries  with  it  a  right  to  have  the 
mortgaged  property  and  franchise  sold  on  non-payment  of  the 
debt,  according  to  the  terms  of  the  obligation."  And  more 
especially,  "where,  as  in  the  case  before  us,  tlie  road  is 
unfinished,  and  there  are  no  tolls  or  other  means  of  collecting 
the  debts  by  sequestration." 

§  522.  Under  the  statute  in  Wisconsin,  a  railroad  company 
becomes  the  owner  in  fee  of  the  real  estate  taken  for  right  of 
way,  or  on  which  to  construct  its  road;  and  by  the  laws  of  that 
state  the  rolling  stock  of  such  company  is  a  fixture  to  such 
realty,  and  is  a  part  thereof. 

§523.  Judgments  at  law  are  by  hivr,  iu  that  state,  liens  upon 
the  real  estate  of  judgment  debtors.  Hence  it  follows  that  a 
judgment  in  that  state  against  a  railroad  company  is  a  lien 

'  Mendenhall  ■».  Westchester  and  PliiLa.  R  R  30  Penn.  St.  145,  n. 
=  Bradley  r.  The  Chester  Valley  K.  \\.  3G  Perm.  St.  141,  155 
= Ibid. 
♦  36  Penn.  St.  145,  ii. 


SALi-:s  OF  coRroiiATi-:  ia^\.xcniSEg,  etc.  11)1 

upon  sucli  real  estate  and  fixtures  of  the  comj^any,  and  tliat  a 
sale  thereof  nnder  a  decree  in  chancery,  to  satisfy  such  judg- 
ment and  conveyance  inade  in  pursuance  thereof,  (the  sale 
being  confirmed  by  the  court,)  carries  to  the  purchaser  title  to 
the  whole  interest  of  the  company,  as  fully  as  it  existed  at  tlie 
time  of  the  rendition  of  such  judgment. ^ 

§  524.  A  mortgage  sale  of  the  rail  road  was  set  aside  at 
the  suit  of  judgment  creditors,  as  fraudulent  and  void,  where 
the  foreclosure  was  nominally  for  an  amount  greatly  in  excess 
of  the  real  indebtedness,  the  notice  of  sale  was  of  a  similar 
character.  The  mortgagee  acting  as  auctioneer,  and  as  such 
bid  in  the  property  for  certain  of  the  bond  liolders  and  directors 
who  had  made  the  mortgage. 

The  Supreme  Court  of  the  United  States,  Kelson  justice, 
hold  the  following  language  in  reference  to  the  transaction: 

"  It  needs  no  authorities  to  show  that  such  a  sale  cannot  bo 
upheld  without  sanctioning  the  grossest  fraud  and  injustice  to 
the  mortgagor  and  its  creditors."  "  The  deccj^tive  notice  was 
calculated  to  destroy  all  competition  among  the  bidders,  and 
indeed,  to  exclude  from  the  purchase  every  one  except  those 
engaged  in  the  perpetration  of  the  fraud.  The  sale  therefore 
must  be  set  aside  and  the  Milwaukee  and  Minnesota  ComjDanv 
be  perpetually  enjoined  from  setting  up  any  right  or  title  under 
it,  the  mortgage  to  remain  as  security  for  the  bonds  in  tlie 
hands  of  Ijona  fide  holders  for  value,  and  that  the  judgment 
creditors  the  complainants  be  at  liberty  to  enforce  t]ieir  judg- 
ments against  the  defendants  therein,  subject  to  all  prior  liens 
or  incumbrances." 2 

§  525.  The  enforcement  of  judgments  at  hnv  against  j^rivatc 
corporations,  and  the  carrying  out  the  rights  of  execution  pur- 
chases on  sales  of  the  right  to  take  tolls,  where  such  sales  are 
allowed  by  statute  on  execution  against  such  corporations,  arc 
fit  subjects  of  equity  jurisdiction. 

§  520.  Such  jurisdiction  results  from  the  incompetency  of 
courts  of  law  to  afibrd  suflicient  or  certain  relief.     Tlic  nature 

'  James  V.  Railroad  Co.  G  Wall.  730. 
"  James  v.  Railroad  Co.  G  Wall.  752,  73.";. 


192  JUDICIAL   A2sD    EXECUTION    SALES. 

of  tlie  interest  to  be  readied,  is  sncli,  IVoui  tlieir  intangil^ility 
as  to  ])reclude  the  ordinary  remedy  of  corporeal  possession 
Avliich  results  from  execution  sales  of  goods  and  chattels  and 
of  real  estate.  On  sucli  sales  of  goods  and  chattels,  j^ossession 
of  tlie  property  is  delivered  to  the  purchaser  by  the  officer  sell- 
ing; and  on  sales  of  the  realty,  the  jDurchascr  has  his  action  at 
law  for  possession  of  the  property.  But  on  execution  sale  (if 
such  sales  be  permissable)  of  a  franchise,  a  mere  easement,  or 
the  right  to  take  tolls,  no  such  possibility  follows ;  and  a  court 
of  law  is  incompetent  to  put  the  purchaser  into  possession  of 
the  fruits  of  his  purchase.^ 

§  527.  In  Covington  Draw  Bridge  Co.  v.  Shepherd,^  the 
Supreme  Court  of  the  United  States,  Cateon  Justice,  say  of 
the  power  of  the  court  of  law  to  meet  out  a  suitable  remedy 
in  such  cases,  that,  "One  thing  however  is  plainly  manifest, 
tliat  the  remedy  at  law  of  these  execution  creditors  is  exceed- 
ingly embarrassed,  and  we  do  not  see  how  they  can  obtain 
satisfaction  of  tlieir  judgments  from  this  corj)oration  (owning 
no  property  but  this  bridge)  unless  equity  can  afford  relief." 

§  528.  In  the  case  of  The  Macon  &.  Western  Hail  lioad 
Co.  V.  Parker,  the  Suj^reme  Court  of  Georgia  hold  the  follow- 
ing language  in  reference  to  the  same  subject:  "The  whole 
history  of  equity  jurisprudence  does  not  not  present  a  case 
which  made  the  interposition  of  its  powers  not  only  highly 
expedient,  but  so  indispensably  necessary  in  adjusting  the  rights 
of  creditors  to  an  insolvent  estate,  as  this  did."^ 

§  520.  In  such  cases,  when  there  is  not  tangible  property 
subject  to  levy  and  sale  belonging  to  the  company,  a  court 
of  equity  will  give  relief  by  appointing  a  receiver  to  take 
charge  of  and  manage  the  corparate  property;  receive  the  tolls 
and  income  of  the  corporation  from  whatever  source  they  may 
emanate,  and  account  for  the  same  to  the  court  to  the  end  that 
they  be  applied  to  the  extinguishment  of  the  judgments  and 

'  Covington  Draw  Bridge  Co.  v.  Shepherd,  21  How.  112;  Macon  &  "Wes. 
tern  R.  R.  -».  Parker,  9  Geo.  878. 

""  21  How.  124. 

=  Macon  &  Western  R.  R.  «.  Parker,  9  Geo.  393,  394;  Covington  Draw 
Bridge  Co.  t.  Shepherd,  21  IIoav.  123. 


I 


SALES    OF   CORrORATE   FliAKCIIISES,    la-C.  193 

cxcctitioiis  existing  against  the  company,  according  to  tlieir 
resjiective  riglits;  first  defraying  the  costs,  cliargcs  and  expenses 
of  the  operation  and  proceedings  out  of  the  same.^  In  tlie 
case  of  The  Covington  Draw  Bridge  Co.  v.  Shepherd,  there 
were  two  judgment  creditors  holding  judgments  in  the  circuit 
court  of  the  United  States,  for  the  District  of  ALabama.  The 
one  sold  and  bought  in  on  execution  the  right  of  the  corpora- 
tion to  the  tolls  of  the  road;  but  finding  his  purchase  ineffectual 
as  to  any  more  than  a  nominal  satisfaction  of  the  writ,  and 
leaving  him  no  means  of  obtaining  actual  payment,  he  joined 
with  the  other  judgment  creditor  in  a  bill  in  chancery  for  the 
appointment  of  a  receiver  to  take  charge  of  the  franchise  and 
corporate  property  and  operate  it  in  satisfaction  of  their  de- 
mands. A  decree  was  accordingly  entered  granting  the  relief 
prayed  for;  from  this  decree  the  case  went  to  the  United  States 
Supreme  Court,  which  affirmed  the  decree  of  the  court  below. " 
§  530.  The  corporation  and  franchise  to  take  toll  were 
created  by  act  of  the  legislature  of  Indiana.  By  the  law  of 
said  state  it  is  enacted  that,  "  the  property,  rights,  credits,  and 
effects  of  the  defendants  are  subject  to  execution." ^  But  not 
the  lands  until  the  rents  and  profits  for  a  term  of  years  are 
first  oflered.  Under  this  state  of  the  law  "the  tolls,  under  the 
idea  that  they  were  rents  and  profits  of  the  bridge  (say  the 
court)  were  sold  for  one  year  according  to  the  forms  of  the 
law.  The  tolls  of  the  bridge  being  a  franchise  and  sole  right 
in  the  corporation,  and  the  bridge  a  mere  easement,  the  corpor- 
ation not  owning  the  fee  in  the  laud  at  either  bank  of  the 
river  or  under  the  water,  it  is  difficult  to  say  how  an  execution 
could  attach  to  either  the  franchise  or  the  structure  of  the 
bridge  as  real  or  personal  property.  This  is  a  question  that 
this  court  may  well  leave  to  the  tribunals  of  Indiana  to  decide, 
on  their  own  laws  should  it  become  necessary."  The  Supreme 
Court,  after  reviewing  the  whole  subject,  then  add  in  conclu- 
sion, that  "  all  that  we  are  called  on  to  decide  in  this  case  is, 

'  Covington  Draw  Bridge  Co.  v.  Shcplicrd,  21  IIo^y.  112. 

« Ibid,  125. 

^  2  Revised  Stats.  1853. 

13 


1^^  JUDICIAL   AND   EXECLTIOX   SMJ-S. 

that  the  eourt  below  had  j^ower  to  cause  possession  to  be  taken 
of  tlie  bridge,  to  appoint  a  receiver  to  collect  tolls  and  pay  them 
in  to  court,  to  the  end  of  discharging  the  judgments  at  law, 
and  our  opinion  is,  that  the  power  to  do  so  exists,  and  that  it 
was  properly  exercised. i 

'  Covington  Draw  IJridge  Co.  v.  Slicplicrd,  21  IIow.  124,  12o. 


TAET  FOmiTH. 

EXECUTION  SALES  OF  EEAL  PEOPEETY. 


CIIAPTEE   XY 

WHAT  INTEREST  IN  LANDS  MAY  BE  SOLD,  AND  IN  WIIxVT 

ORDER. 

I.    How  Liable  to  Sale. 
II.    DowEii  Laxds. 

III.  UNDIVIDED  IXTEFvESTS. 

IV.  Equitable  Interests. 
V.    The  Homestead. 

VI.    In  What  Order  Sale  is  to  be  Made. 

I.     IIow  Liable  to  Sale. 

§  53 L  Lands  were  never  liable  to  execution  sales  at  com- 
mon law.  Tlic  remedy  of  the  creditor  was  against  tlic  rents 
and  2)rofits.  First  by  the  T\Tit  of  levari  facias,  and  subse- 
quently by  writ  of  elegit.  Tlie  latter  ^vas  given  by  statute  of 
Westminster,  2-13  Elizabeth. ^ 

§  532.  ISText  came  tlie  statute  of  George  II.,  subjecting 
lands  to  execution  sale  in  the  American  colonies  and  others. 
In  Bergin  v.  McFarland,'^  the  conrt  holds  the  following  lan- 
guage in  reference  to  this  statute,  Bell,  JTustice:  "By  an  early 
British  statute,  lands  in  the  colonies  were  subjected  equally 
with  personal  estate  of  the  debtor  to  the  payment  of  debts. 
Stat.  5,  George  II.;  Prov.  Stat,  of  K  IL,  1T71,  p.  233.  And 
by  very  early  statutes  both  of  Massachusetts  and  of  this  pro- 

'  Gantlcy's  Lessee  t'.  Ewinc;,  3  How.  714;  McConnell  r.  Brown,  5  Men. 
480;  Erwin  v.  Dimdas,4  IIow.  58,  77;  Bergin  v.  ISIcFarland.G  Foster  (N.  II.) 
536;  3  Bac.  Abt.  C.  G4;  4  Kent,  Com.  429. 

•  6  Foster  (N.  II.)  53G. 

(195) 


196  JUDICIAL  AND   EXECC'llON   SALES. 

\'incc,  power  was  conferred  upon  executors  and  administratora 
to  sell  the  real  estate  for  payment  of  debts,  in  case  the  proper 
courts,  upon  application,  should  deem  the  same  necessary  or 
proper." 

There  were  like  statutes  in  Pennsylvania  of  early  date. 
Hence  the  origin  of  selling  lands  for  debt  in  the  American 
colonies  and  states,  a  practice  continued  in  most  of  the  states 
at  the  present  time  varied  only  in  manner  and  effect  by  local 
regulations.  In  some,  hovrever,  the  writ  of  elegit,  and  in 
others  the  remedy  by  extent,  are  resorted  to.  AVith  these  latter 
remedies  we  have  nothing  in  this  work  to  do. 

§  533.  In  some  of  the  states  the  lands  are  not  only  liable 
to  execution  sale,  if  there  be  not  personal  property  found,  but 
the  debtor  at  his  option  may  require  their  sale  on  execution  in 
lieu  of  the  personalty.  1 

§  534.  In  others,  if  there  be  not  personal  property  found, 
then  the  land  is  levied  on,  and  the  rents  and  profits  are 
appraised  for  a  certain  term  fixed  by  statute,  and  for  such  term 
are  offered  for  sale  upon  the  writ.  If  they  do  not  command 
the  amount  of  the  debt,  then  sale  is  made  of  the  land  itself - 

§  535.  But  the  various  and  diversified  statutory  regulations 
in  the  several  states  are  too  numerous  to  come  within  the 
scope  of  our  title  and  purpose,  and  will,  therefore,  not  be  fol- 
lowed out. 

§  536.  The  more  prevalent  rule  now  is,  that  in  those  states 
where  execution  sales  are  made  of  the  realty,  every  legal  inter- 
est of  the  debtor  not  exempt  by  statute  is  subject  to  levy  and 
sale,  including  those  that  are  contingent,  in  reversion  and  in 
remainder. '"^     Also  rent  charges,*  and  leases. ^     And  in  some 

*  Tuttlc  «.  Wilson,  24  111.  559;  Pitts  v.  McGic,  24  Ill.GlO;  Cavender  r. 
Smith,  1  Iowa,  306. 

*  Gantley's  Lessee  v.  Ewing,  3  How.  707. 

'  Humphreys  v.  Humphreys,  1  Yeates,  427;  Wiley  v.  Briclgmaii,  1  Head, 
(I'cnn.)  08;  Smith  v.  Ingles,  2  Oregon,  43,  45. 

*  Hurst  V.  Lithgrow,  3  Yeates,  25. 

*  Bisby  V.  Hall,  3  Ham.  449;  Shelton  v.  Codman,  3  Cusli.  318. 


EXECUTION    SALES    OF    HEAL   I'lJOPEUTY.  197 

of  tlic  states,  mere  ecj[iiitlcs.i  But  the  interest  must  be  in  the 
land  itself  and  not  a  mere  permit  to  occupy. ^ 

§  537.  In  Iowa,  under  the  statute,  pre-emption  rights  are 
hoklen  to  be  sul)ject  to  execution  sales.  =^  And  in  several  of 
the  states  an  "  entrj  or  survey  "  of  lands  is  such  an  "  inchoate 
and  incomplete  legal  title,"  as  is  subject  to  execution  sale.'^ 

§  53S.  Likewise  are  equity  of  redemption  ;5  but  not  the 
statutory  right  to  redeem  from  execution  sale.^  But  an  inter- 
est arising  under  a  resulting  trust  is  liable  to  execution  sale."^ 
fhe  ]3urchaser  at  execution  sale  has  no  such  interest  before 
expiration  of  the  time  allowed  for  redem-'3tion  as  may  be  levied 
and  sold.** 

§  539.  The  law  is  well  settled  in  Louisiana  that  an  execution 
creditor  who  would  avoid  a  fraudulent  sale  of  lands  made  by 
his  debtor,  or  by  a  proceedings  in  probate,  must  first  bring  his 
bill  and  set  aside  the  sale  for  the  fraud,  before  he  can  levy  and 
sell  the  lands  on  his  execution. 

§  54:0.  The  Sui^reme  Court  of  the  United  States  in  disposing 
of  this  subject,  say:  "The  judgment  creditor  is  not  permitted 
to  treat  a  conveyance  from  the  defendant  in  the  judgment, 
made  by  authentic  act,  or  in  pursuance  of  a  judicial  sale  of 
the  succession  by  a  probate  judge,  as  null  and  void,  and  to 
seize  and  sell  the  property  which  had  thus  j^assed  to  the 
vendee.  The  law  requires  that  he  shall  bring  an  action  to  set 
the  alienation  aside,  and  succeed  in  the  same  before  he  can 
levy  his  execution.     And  so  firmly  settled  and  fixed  is  this 

"Foot  V,  Cobin,  3  Johns.  2iG;  Kizer  c.  SaTvycr,  4  Kun.  503 ;  Jackson  r. 
Eateman,  2  Wend.  570;  Evans  v.  Wilder,  5  JMo.  313. 

*  West  Peun.  R.  li.  Co.  v.  Johnson,  59  Penu.  St.  294;  Morrow  r.  Bronizcr, 
2  Ilawle,  188;  Thomas  ■;;.  Simpson,  3  Barr.  G9. 

*  Levy  V.  Thompson,  4  How.  17. 

^  Landers  v.  Brant,  10  IIow.  348;  Land  t\  Hopkins,  7  Ahi.  115;  Thomas 
V.  Marshall,  Hardin,  19. 

^  Waters  v.  Stewart,  1  Caines  Cas.  47 ;  Watkins  v.  Gre.sior}',  G  Blackf.  113 ; 
Hunter  v.  Hunter,  Walker,  194;  Phelps  v.  Butler,  2  Ham.  224;  Porter  v. 
Millet,  9  Mass.  101;  Taylor  v.  Cornelius,  GO  Penn.  St.  187,  195. 

«  Watson  V.  Reissig,  24  111.  281;  Merry  v.  Bostwick,  13  HI.  398. 

^  Foot-B.  Colvin,  3  Johns.  21G;  Jackson  v.  Bateman,  2  Wend.  270;  Evan.3 
r.  AViUler,  5Mo.  313,  321. 

«  Den  r.  Stcelman,  5  llalst.  193;  Kidder  c.  Oreutt,  40  .Maine,  589. 


19S  JUDICIAL   AND    EXECUnON   SALES. 

principle  iii  the  jurisprudence  of  Louisiana,  as  a  rule  of  prop- 
erty and  as  administered  in  tlie  courts  of  that  state,  tliat  even 
if  the  sale  and  conveyance  by  authentic  act  or  in  pursuance 
of  a  judicial  sale  are  confessedly  fraudulent  and  void,  still  no 
title  passes  to  tlie  2)^^i*C'haser  under  the  judgment  and  execu- 
tion." Tliat  "  in  eifect  the  sale,  if  permitted  to  take  place,  is 
null  and  void,  and  passes  no  title."  Tlic  United  States  Supreme 
Court  recognize  this  principle  as  running  through  all  the  books 
of  that  state.  1 

§  54:1.  A  claim  of  land  not  based  upon  either  right  or  pos- 
session is  not  an  interest  in  the  realty,  or  subject  to  execution 
sale.  2 

§  542.  Lands  held  in  trust  by  an  executor  to  pay  a  testa- 
tor's debts  are  equitable  assets  and  are  not  liable  to  execution 
sale  in  proceedings  against  the  heirs  or  against  the  executors.^ 
The  trust  must  be  executed;  the  proper  tribunal  will  enforce 
its  execution  if  need  be,  and  will  sec  to  the  faithful  application 
of  the  proceeds. 

§  543.  Lands  held  by  purchaser  of  the  United  States  before 
the  issuance  of  the  patent,  are  suljject  to  execution  sale,  as  also 
to  judgment  liens. "^ 

§  544.  When  the  patent  issues,  the  title  under  the  sherifl"*s 
sale  relates  back  to  the  date  of  the  entry,  and  so  does  the  gov- 
ernment patent,  and  title  vests  in  the  execution  purc-haser  by 
such  relation.^ 

§  545.  "There  is  no  rule  better  founded  in  law,  or  reason, 
or  convenience,"  (says  the  learned  author  of  Cruise  on  Iieal 

'  Ford  V.  Douglass,  o  How.  143.  Sec  also  Hcnrj^  v.  Hyde,  5  Martin 
(N.  S.)  633;  Yocom  v.  Bullitt,  6  Martin,  324;  Peet®.  Morgan,  G  Martin,  137; 
Childress  v.  Allen,  3  La.  477;  Bennett  v.  Duvergis,  5  La.  124 ;  Samory  t\ 
Hebrard,  17  La.  558. 

2  Hagaman  v.  Jackson,  1  Wend.  502;  Major  v.  Deer,  4  J.J.  Marshall, 
585. 

3  Helm  v.  Dailey,  3  Dana,  185. 

*  Huntingdon  v.  Grantland,  33  Miss.  453 ;  Landes  i\  Brant,  10  How.  348, 
374;  Levi  v.  Thompson,  Morris  (Iowa)  235;  Cavender  v.  Smith,  5  Iowa, 
157;  Kogers  v.  Brent,  5  Gilm.  573;  Jackson  v.  Williams,  10  Ohio,  09. 

"  Landes  i:.  Brant,  10  IIow.  348,  372,  373,  374;  Cavender  r.  Smith,  5  Iowa, 
157. 


EXECUTIOX    SALES   OF    JIKAL    I'KorKKTY.  190 

Property,)  "  than  tliis;  that  all  tlio  several  parts  and  ceremonies 
necessary  to  complete  a  conveyance  shall  be  taken  together  as 
one  act  and  operate  from  the  substantial  part  by  relation."^ 

11.     Dow  Eli  Lands. 

§  54G.  The  right  of  dower  may  not  be  sold  on  execution 
before  assignment  or  possession  thereof.- 

§  547.  But  dower  lands  held  by  actual  possession  of  tlic 
tenant  in  dower  may  be  levied  and  sold,  and  the  possessory 
right  will  pass,  and  so  will  the  growing  crops,  by  the  sale,  if 
there  be  no  redemption  allowed  by  law.^ 

§  54S.  And  so  the  possessory  interest  of  a  husband  in  dower 
lands  already  assigned  to  his  wife  as  the  widow  of  a  former 
husband.* 

III.       UxDn'IUED    IxTEIIEST. 

§  549.  Xeithcr  the  interest  of  husband  or  wife,  where  they 
are  tenants  of  the  entirety  in  lands,  can  be  sold  on  execution 
so  as  to  pass  aw^ay  title  that  may  be  enforced  during  their  joint 
lives,  or  against  the  survivor  after  the  death  of  one  of  them. 
During  their  lifetime  husband  and  wife  are  tenants  of  the 
entirety  of  lands  conveyed  to  the  two  jointly  and  each  arc 
seized  of  the  whole.  On  the  death  of  cither  the  entirety 
remains  in  the  survivor  and  such  survivor  becomes  the  sole 
owner  of  the  whole  estate  in  the  land.^  So  no  separate  pro- 
ceeding against  one  of  them,  during  their  joint  lives,  will  by 
sale  affect  the  title  to  the  property  as  against  the  other  one  as 
survivor,  or  as  against  the  two  during  their  joint  lives.  ^  ^Neither 
party  to  such  tenancy  can  sell  or  convey  their  interest,  for  it  is 
incapable  of  being  separated.     The  husband  and  wife  being 

'  5  Cruise,  Real  Prop.  510,  511. 

"  Nasou  V.  Allen,  5  Greeul.  479;  Goocli  v.  Atkins,  14  3Iass.  378;  Graham 
V.  Moore,  5  liar.  (Del.)  318;  Pennington  v.  Yell,  G  Eng.  212. 

=  Pitts  V.  Ilcndrix,  G  Geo.  452. 

*  JSIcConihc  v.  Sawyer,  13  N.  II.  3G9. 

»  3  Bl.  Com.  182;  4  Kent,  Com.  3G2. 

«Frcuch  V.  Mehan,  5G  Pcnn.  St.  2SG  ;  McCunlv  v.  Cannin"-.  G4  Ponr, 
St.  89. 


200  JUDICIAL   AND    EXECUTION    SALES. 

one,^  tlicrcfore  each  are  seized  of  the  whole;  and  what  one 
cannot  himself  sell  cannot  be  sold  on  execution  against  him." 
§  550.  How  far  this  species  of  tenancy  has  been  aflected  by 
statutory  enactment  of  any  of  the  states,  it  is  not  our  purpose 
liere  to  enquire. 

TV.     Equitaule  Interest. 

§  551.  A  title  merely  equitable,  without  possession,  may 
not  be  sold,  ordinarily,  on  execution.  If  subject  tliercto  it  is 
by  statutory  enactment.^ 

§  552.  But  "  possession  of  land,  (in  the  language  of  Swan, 
Justice,)  is  an  estate  therein  which  may  ripen  into  a  right  of 
possession  and  property,"  and  "  if  a  judgment  debtor  is  in 
possession  of  land,  it  maybe  levied  upon  and  sold."'^ 

'  3  El.  Com.  182;  4  Kent,  3C2. 

-  French  v.  Melian,  56  Penn.  St.  280 ;  Gentry  v.  Wagstafl',  3  Dcv.  370.  In 
French  v.  Mchan,  the  court  liold  that  "  it  is  well  settled  that  if  an  estate  in 
land  be  given  to  the  husband  and  wife,  or  a  joint  purchase  be  made  by 
Ihem  during  covcture,  they  are  not  properly  joint  tenants  or  tenants  in 
common,  for  they  are  but  one  person  in  law  and  cannot  take  by  moieties 
They  are  both  seized  of  the  entirety,  and  though  the  husband  may  have 
the  absolute  control  of  the  estate  during  his  life,  and  may  convey  or  mort- 
gage it  during  that  period,  neither  can  alienate  au}^  portion  thereof  with- 
out tlie  consent  of  the  other,  and  the  survivor  takes  the  whole.  Johnson 
V.  Hart,  G  W.  &  S.  319;  Robb  v.  Beaver, 8  id.  Ill;  FairchikU.  Chastelleux, 
IBarr,  176;  Clark  v.  Thompson,  3  Jones,  274;  Stuckey  «.  Keefe's  Exrs.  3 
Casey,  397;  Martin  v.  Jackson,  3  id.  504;  Bates -».  Seeley,  10  Wright,  348. 
"  If  the  wife  survives  the  husband  she  takes  the  estate  discharged  of  his 
debts,  for  the  reason  that  she  does  not  take  it  under  or  through  him,  but 
by  virtue  of  the  paramount  grant  in  the  original  conveyance.  And  though 
the  husband's  interest  may  be  sold  under  execution  daring  coveture, 
(Stoebler  v.  Knerr,  5  "Watt.  181.)  yet  if  his  creditors  levy  upon  the  estate  in 
liis  lifetime,  and  sell  it  as  his  propcrtj^,  the  wife  may  recover  it  on  his 
death  in  an  action  of  ejectment.  Brownson  v.  Hull,  IG  Vt.  309."  We  may 
add  here  that  if  a  sale  as  against  the  husband,  on  execution  against  him 
can  affect  the  possession  during  the  joint  lives  of  the  husband  and  wife, 
it  can  only  be  so,  upon  the  principle  that  during  that  time  her  possession 
is  merged  in  his.    French  v.  Mehan,  56  Penn.  St.  288,  289. 

3  Hayncs  v.  Baker,  5  Ohio  St.  253;  Thomas  v.  Marshall,  Hardin  (Ky.)  30; 
Tyrec  v.  Williams,  3  Bibb.  366;  Allen  v.  Saunders,  3  Bibb.  94;  January  v. 
iinulford,  4  Bibb.  560. 

*  Ilayncs  v.  Baker,  5  Ohio  St.  353;  Jackson  v.  Williams,  10  Ohio,  69. 


EXECUTION    SALES    OF    REM.    rHOrEKTr.  201 

§  553.  In  Indiana,  by  statute,  lands  fraudulently  conveyed 
away  by  a  judgment  debtor  are  subject  to  execution  sale,  with- 
out first  being  uncovered  in  equity  from  the  fraud. 

§  554.  And  so  lands  holden  in  trust  for  another  may  be 
levied  and  sold  for  the  debt  of  the  person  for  whose  benefit 
they  are  held.^ 

§  555.  In  Iowa,  by  statute,  equitable  interests  in  tlie  realty 
are  liable  to  execution  sale,  and  judgments  are  liens  thereon. 2 
In  the  case  here  cited  the  court  say:  "Tlie  question  involves 
no  principle  not  heretofore  settled  by  this  court.  First — It 
lias  been  held  that  the  interest  of  the  judgment  debtor  in  real 
estate  is  vendible  upon  execution,  and  the  judgment  itself 
operates  as  a  lien  thereon.  Harrison  v.  Kramer  et  al.,  3  Iowa, 
543;  Blain  v.  Stewart,  2  Iowa,  378."  And  in  Harrison  v. 
Kramer  et  al.,  the  Supreme  Court  of  Iowa  hold  that  "a  judg- 
ment is  a  lien  upon  the  real  estate  of  the  defendant,  and  by 
real  estate  is  meant  all  right  thereto  and  interest  therein, 
equitable  as  well  as  legal. "^ 

\'.       TUE    HOMESTI^AD. 

§  550.  Though  judgments  at  law  are  ordinarily  a  lien  on 
the  lands  of  judgment  debtors,  yet  they  are  not  so  as  to  the 
lands  occupied  as  a  homestead;  and  if  the  homestead  be  aban- 
doned by  sale,  conveyance,  and  delivery  of  possession  by  the 
debtor  whilst  a  judgment  exists  against  him,  the  lien  thereof 
does  not  attach  to  the  premises,  but  the  grantee  takes  a  clean 
title  to  the  same  so  far  as  regards  the  judgment,  and  an  execu- 
tion sale  thereof  under  the  judgment  is  void.^^ 

*  Tcvis  V.  Doe,  3  IncL  129,  131. 

"  Crosby  v.  Elkader  Lodge,  IG  Iowa,  399,  40.j ;  Ilarrisou  y.  Kramer,  8 
Iowa,  543 ;  Blain  v.  Stewart,  2  Iowa,  378. 

^  Harrison  v.  Kramer,  3  Iowa,  543,  5G1.  The  title,  when  perfected  h\ 
patent,  to  lands  sold  on  execution  when  the  estate  w^as  but  inclioate, 
inures  to  the  benefit  of  the  execution  purchaser,  and  by  relation  invest.^ 
him  witli  the  fee.     Cavender  v.  Smith,  5  Iowa.  157. 

•*  Morris  v.  Ward,  5  Kan.  239;  Lamb  v.  Shays,  14  Iowa,  5G7;  Cummins  t;. 
Long,  IG  Iowa,  41;  Revalk  v.  Krsemer,  8  Cal.  6G;  Wiggins  «.  Cliance,  44 
111.  175;  Green  v.  Marks,  25  111.  221;  Fishback  v.  Lane,  36  111.  437;  Bliss ^. 
Clark,  39  III.  590. 


202  .iUDICLVL   A2>ID   EXECUTION    SMACS. 

§  557.  Tlic  same  doctrine  is  licld  in  Iowa.  The  lien  bei'ng 
the  creature  of  the  statute,  it  can  only  apply  where  the  statute 
applies  it.  The  law  giving  the  lien  and  the  law  granting  the 
homestead  are  to  be  construed  together.  ^  A  judgment  lien 
can  only  be  co-extensive  with  the  right  to  enforce  it.^ 

§  557.  In  the  case  cited  from  5th  Kansas,  the  subject  is 
discussed  by  Judge  Valentine  with  equal  ability,  and  the 
same  conclusion  is  arrived  at  as  by  the  Supreme  Court  of 

'  Lamb  v.  Shays,  14  Iowa,  5G7;  Cummins  v.  Long,  IG  Iowa,  41. 

-  Scriba  v.  Dean,  Marshall,  Justice,  1  Brock.  IGG ;  Bank  of  U.  S.  v.  Win- 
ston, 2  Brock.  252 ;  Shrew  «.  Jones,  2  McLean,  78 ;  Lamb  v.  Shays,  14  Iowa, 
5G7;  Bliss  v.  Clark.  39  111.  590.  The  learned  court  in  Iowa,  BALDWrs', 
Justice,  dispose  of  this  subject  in  the  following  forcible  language:  "The 
section  in  relation  to  the  liens  of  judgments  of  the  Supreme  and  District 
Courts,  and  the  one  giving  to  the  owner  of  the  homestead  the  exemption, 
were  passed  by  the  Legislature  at  the  same  time ;  the  one  giving  to  the 
judgment  creditor  a  lien  on  the  lands  of  the  defendant,  and  the  other 
denying  Iiim  the  right  to  enforce  it  so  far  as  the  homestead  is  concerned. 
The  right  of  the  judgment  to  seize  or  to  enforce  his  judgment  by  selling 
the  lauds  of  the  debtor  exists  only  by  force  of  the  statute,  and  is  regulated 
altogether  by  its  provisions.  The  lieu  of  a  judgment  upon  lands  in  this 
state  being  conferred  by  statute,  it  can  only  have  such  force  as  is  given 
thereby,  and  it  can  only  attach  and  become  effective  in  the  manner,  at  the 
time,  and  upon  the  conditions  and  limitations  imposed  by  the  statute 
itself.  A  lien  without  the  power  to  enforce  it  carries  with  it  no  advantage 
to  the  owner  thereof.  It  cannot  be  enforced  as  against  the  homestead, 
because  it  is  exempt  from  judicial  sale.  It  is  inoperative  and  cannot  be 
otherwise  as  long  as  the  homestead  is  used  as  a  home.  Construing  the 
two  sections  together,  having  been  passed  at  the  same  time  by  the  Legis- 
lature, we  think  that  it  could  not  have  been  designed  that  the  lien  should 
ever  attach  uj^on  property  that  Avas  declared  exempt  from  judicial  sale. 
This  exemption  exists  only  so  long  as  the  homestead  is  occupied  and  used 
as  a  home.  The  moment  it  ceases  to  be  used  as  such,  the  lien  attaches, 
the  same  as  it  attaches  against  property  acquired  by  the  judgment  debtor 
after  the  judgment  is  rendered,  and  the  priority  of  liens  can  be  determined 
in  the  same  manner.  If,  therefore,  this  lien  does  not  attach  so  as  to  be 
effective  against  the  owner,  how  can  it  affect  the  rights  of  a  purchaser  of 
the  homestead  propertj^  ?  The  right  of  exemption  continues  until  the  sale 
and  delivery  of  the  deed  to  the  vendee,  and  the  lien  cannot  attach  until 
after  sale  and  delivery,  nor  until  after  it  ceases  to  be  occupied  by  the 
owner.  Prior  to  this  the  vendee's  riglits  become  absolute."  Lamb  r. 
Shays,  14  Iowa,  5G9,  570. 


i;x]':cuTiON  sales  of  kicai.  rKorjajxv.  203 

lowa.i  XliC  same  is  substantially  the  niliii<j^  in  Illinois.  It 
is  there  holclen  that  neither  judgment  nor  levy  will  operate  as 
a  lien  upon  the  homestead.  That  temporary  abandonment  of 
the  same,  with  intent  to  reoccupy  it  as  homestead,  though 
rented  out  in  the  interim,  will  not  subject  it  to  lien,  of  judg- 
ment, levy,  or  to  sale.  Tliat  a  grantee  of  the  owner  hold.s 
against  a  prior  judgment  which  would  have  been  a  lien  on  the 
land  but  for  the  homestead  law;  and  that  if  sold  on  execution, 
the  sale,  07i  application,  will  be  set  aside.-     But  that  whether 

'In  this  case  the  court  hold  the  following  principles  and  language: 
"It  is  claimed  that  the  judgment  lien  remains  simply  dormant  during  the 
time  that  the  land  is  occupied  as  a  homestead,  and  that  as  soon  as  it  is 
transferred  and  ceases  to  be  occupied  as  a  homestead,  the  lien  attaches  and 
becomes  effective.  Now  suppose  the  husband,  in  whom  the  title  is  vested, 
dies.  The  title  to  the  property  is  immediately,  by  law,  transferred  from 
him  to  Ills  widow  and  children,  and  he  ceases  to  occupy  the  property  as  a 
homestead,  will  the  judgment  lien  then  attach  and  take  the  homestead 
away  from  the  widow  and  children  ?  And  suppose  the  whole  family  die, 
except  those  children  born  after  the  judgment  was  rendered,  can  those 
children  hold  the  property  as  a  homestead?  If  they  can,  then  where  is 
the  certainty  of  a  judgment  lien  ever  attaching  to  a  homestead  and  becom- 
ing eflective?  And  as  long  as  the  lien  is  not  effective  it  is  practically  no 
lien  at  all.  In  the  case  at  bar,  several  days  before  the  land  was  abandoned 
as  a  homestead,  and,  therefore,  several  days  before  the  judgment  lien 
could  have  any  practical  existence  the  land  was  convej-ed  to  Morris.  Then 
when  did  this  lien  attach  and  become  effective?  Upon  the  whole  we 
decide  the  questions  in  this  case  as  follows:  1.  A  mortgage  of  the  liome- 
stead,  executed  by  the  husband  alone,  is  void.  3.  A  judgment  rendered 
against  the  husband  alone  is  not  a  lien  on  the  homestead.  3.  Neither  is 
such  a  mortgage,  nor  such  a  judgment  any  incumbrance  on  land  owned 
by  the  husband  and  occupied  by  himself  and  family  as  a  homestead.  4. 
Such  land  may  be  sold  and  conveyed  by  the  husband  and  wife  jointl}%  and 
the  purchaser  will  take  the  title  free  and  clear  from  all  incumbrances, 
notwithstanding  said  mortgage  and  judgment.  5,  After  said  sale  and  con- 
veyance, and  after  the  land  has  been  abandoned  as  a  homestead,  if  an 
execution  issue  on  said  judgment,  and  the  land  be  sold  under  said  execu- 
tion, the  sale  is  void.  G.  After  said  sale  and  conveyance,  and  abandon- 
ment, if  a  decree  of  foreclosure  be  entered  on  said  mortgage  against  the 
liusband,  in  a  suit  in  which  the  wife  is  not  a  party,  the  decree  is  void  so 
far  as  it  affects  and  is  no  evidence  of  anything  as  against  her."  Morris  t. 
Ward,  5  Kan.  347,  248,  249. 

-Green  v.  Marks,  25  111.  231;  Stevenson  -y.  Marony,  39  111.534;  Fish- 
back  V.  Lane,  30  111.  437;  Bliss  v.  Clark,  39  111.  590;  Wiggins  v.  Chance,  54 
111.  175;  Cippcrly  v.  Hiiodes,  53  111.  340.    In  Wiggins  v.  Chance,  54  111.  175, 


204  JUDICIAL    AND    EXECUTION    S.II.K. 

set  aside  or  not,  sncli  sale  is  absolutely  void,  and  not  even  a 
permanent  abandonment  of  sucb  homestead  subsequent  to 
snob  void  sale  can  render  the  sale  valid  Avbicb  was  invalid 
before.  ^ 

§  55S.  On  an  abandonment  of  the  liomestead,  there  being 
several  judgments  against  the  owner,  the  first  lev^y  made  thereon 
•^vill  take  priority.  There  being  no  lien  of  either  judgment 
on  the  premises  while  thoj  continue  to  be  a  homestead,  a 
release  of  the  homestead  privilege  in  fiivor  of  the  plaintiff  in 
execution  of  a  junior  judgment  and  a  levy  of  his  execution 

tlie  opinion  of  the  court  is  given  as  follows:  "Tlic  evidence  sliows  tliat 
this  land  was  a  part  of  appellee's  liomestead  wlien  the  levy  and  sale  were 
made,  and  the  whole  property  was  worth  less  than  $1,000,  and  there  is  no 
pretence  that  the  homestead  right  was  waived  or  released  in  the  mode 
prescribed  hy  tlie  law.  In  the  case  of  Green  v.  Marks,  25  111.  221,  it  was 
held  that  the  law  exempted  the  homestead  of  the  debtor  from  levy  and 
sale  on  execution,  and  they  created  no  lien  on  the  homestead  W'hile  the 
debtor  was  in  a  position  to  claim  the  benefits  of  the  laud.  In  the  case  of 
Stevenson  v.  Marony,  29  III.  534,  it  was  held  that  when  the  homestead  is 
sold  and  the  debtor  is  in  a  j^osition  to  claim  the  benefit  of  the  act,  he  may 
have  the  levy  and  sale  set  aside.  And  in  the  case  of  Fishback  v.  Lane,  C6 
111.  4-37,  it  was  held  that  the  grantee  of  the  debtor  held  the  land  as  against 
a  prior  judgment,  which  would  have  been  a  lien  had  it  not  been  for  the 
homestead  law,  and  that  case  was  based  upon  the  prior  case  of  Bliss  t. 
Clark,  but  not  reported  until  the  39  111.  590,  and  upon  Green  v.  Marks, 
supra.  It  is  manifest,  from  those  cases,  that  there  was  no  lien  created  on 
this  homestead  by  issuing  the  execution,  the  levj^,  or  the  sale,  and  that 
the  sale  was  void  and  passed  no  title  to  Garrison.  He  or  appellee  could 
liave  applied  to  the  court  and  had  the  levy  and  sale  set  aside,  as  nothing 
was  acquired  therebj^  It  is  urged  that  appellee,  subsequently  to  the  sale. 
:!,bandoned  the  premises  by  removing  from  them  for  some  months  and  by 
leasing  the  place.  He  swears  he  only  left  to  earn  money  to  pay  his  debts, 
intending  to  return  and  continue  it  as  his  home,  which  he  did,  and  nothing 
is  found  in  the  record  to  rebut  this  evidence.  But  even  admitting  that  he 
did  not  intend  to  return,  how  is  the  case  changed?  If  the  Icvj^  created 
no  lien,  and  the  sale  transferred  no  title,  how  could  appellee's  subsequent 
abandonment  render  this  void  sale  valid?  How  could  it  impart  vigor  to 
the  sale  and  conveyance  by  the  sherifl,  which  was  unauthorized  and  con- 
ferred no  title?  We  are  at  a  loss  to  perceive  liov/  appellee's  position 
could  be  thus  changed.  Failing  to  perceive  that  appellant  had  shown 
any  defense,  we  must  hold  the  court  below  acted  correctly  in  rendering 
the  judgment,  and  it  must  be  affirmed. "j 

"  Wiggins  V.  Chance,  54  111.  175,  and  cases  there  cited.  , 


EXKCUTION    SALES   OF   R1L\L    rKOriniTV.  205 

tlien  in.  the  slicriff 's  liands  will  take  precedence  over  tlie  senior 
judgment  and  the  levy  of  an  execution  subsequently  issued 
thereon  and  levied  on  the  same  land.^ 

VI.     In  AYhat  Order  to  be  Sold. 

§  550.  When  a  part  of  the  lands  subject  to  a  judgment  lien 
are  sold  by  the  judgment  debtor  after  the  lien  has  attached,  yet 
if  a  sufficiency  thereof  still  remains  to  realize  the  judgment, 
the  creditor  must  in  ccpiity  make  his  levy  and  sale  of  the  part 
so  remaining;  and  if  the  part  so  remaining  unsold  be  not 
sufficient  to  discharge  the  whole  amount,  yet  the  creditor  must 
exhaust  the  same  before  proceeding  against  tlic  part  so  sold  by 
the  debtor;  and  so  likewise  he  must  exhaust  any  other  jDrop- 
crty  of  the  debtor,  j)rovided  it  does  not  interfere  with  inter- 
vening equities  or  rights  of  other  creditors." 

§  560.  By  some  authorities,  if  lands  subject  to  judgment  lien 
be  sold  by  the  judgment  debtor  to  several  different  purchasers,  in 
parcels,  and  at  different  dates,  after  the  lien  of  the  judgment 
has  attached,  so  as  to  leave  no  remaining  unsold,  part  thereof 
sufficient  to  satisfy  the  judgment  then  in  equity,  after  exhaust- 
ing what  remains,  the  judgment  creditor  may  be  compelled  to 
resort  to  those  parcels  last  disposed  of,  in  their  several  orders 
of  conveyance,  on  which  to  levy'  his  debt.  That  is  to  say,  the 
parcel  last  sold  is  first  to  be  exhausted;  then  the  next;  and  so 
on  in  order  until  the  debt  is  satisfied,  or  the  parcels  be  all 
exhausted.     So  in  like  manner  as  to  mortgage  liens. ^     Tliey 

'  Bliss  V.  Clark,  39  111.  590, 

-  Clowes  V.  Dickenson,  5  Johns.  Ch.  235 ;  and  same  case,  9  Covr.  405 ; 
Hurd  V.  Eaton,  28  111.  122;  Bates  v.  Ruddick,  3  Iowa,  423;  Massie  v.  Wil- 
son, 16  Iowa,  891 ;  Barney  v.  Mj-ers,  28  Iowa,  427. 

^  Clowes  V.  Dickenson,  5  Johns.  Ch.  235;  Stuyvesant  r.  Hall,  2  Barh.  Ch. 
151;  Wisconsin  v.  Titus,  17  Wis.  241;  Ins.  Co.  v.  Miller,  1  Barb.  Ch.  353; 
Marshall  v.  Moore,  30  111.  321 ;  Mason  v.  Payne,  1  Walker,  Ch.  459;  Carey  r. 
Fulsoni,  14  Ohio,  305;  Schriver  v.  Teller,  9  Paige,  173;  Ralhbone  v.  Clark, 
9  Paige  Ch.  048;  LaFarge  Ins.  Co.  «.  Bell,  23  Barb.  54;  Ogden  v.  Gidden, 
9  Wis.  40;  Aiken  v.  Bruen,  21  Ind.  137;  Gill  v.  Lyon,  1  Johns.  Ch.  440. 
See  also  Maine,  S.  C.  and  others.  In  Clowes  v.  Dickenson,  5  Johns.  Ch. 
235,  by  the  Chancellor:  "  If  there  be  a  judgment  against  a  person  owning 
at  the  time  three  acres  of  land,  and  he  sells  one  acre  to  A.,  the  two  remain- 
ing acres  arc  first  chargeable,  in  equity,  with  the  paj-mcnt  of  the  judg- 


20G  JUDICLiL   AXD   EXECUTION    S^U^ES. 

are  to  bo  sold  in  tlic  iiivcrsc  order  of  tliclr  sale  by  the  execu- 
tion debtor. 

§  561.  By  others  it  is  held,  however,  that  "whilst  the  rule  is 
recognized  that  on  sale  of  a  part  only  of  the  lands  subject  to 
the  lien,  by  the  judgment  debtor,  the  execution  creditor  in 
enforcing  his  judgment  lien  is  in  equity  bound  to  exhaust  the 
remaining  portion  still  belonging  to  his  debtor  before  proceed- 
ing against  the  part  that  has  been  sold;  yet  that  if  the  wliole 
be  sold  in  different  parcels  and  at  different  dates,  instead  of 
the  creditor  having  to  sell  the  parcels  in  the  inverse  order  of 
their  sale  by  the  debtor,  he  may  coerce  an  equal  jp'o  rata  con- 
tribution out  of  each,  in  proportion  to  the  value  thereof 
respectively.^  The  former  we  conceive  to  be  the  better  ruling. 
Yet  each  must  be  regarded  as  law  within  the  jurisdiction  of 
the  tribunals  making  these  diverse  ruling-s. 

§  5G2.  If  there  be  senior  and  junior  judgment  liens  in  favor 
of  difierent  creditors  against  the  same  premises  of  a  judgment 
debtor,  and  the  junior  judgment  creditor  execute  and  sell  a 
portion  of  the  lands  so  subject  to  the  judgment  liens,  then  a 
Ijona  fide  piirchaser  under  the  execution  sale  of  the  junior 
creditor,  will,  in  equity,  have  a  right  to  turn  the  senior  judg- 
ment creditor  over  to  the  remaining  part  of  the  lands  of  the 

Tuent  debt,  as  vrc  have  already  seen,  whether  the  land  be  in  the  hands  of 
the  debtor  himself  or  his  heirs.  If  he  sells  another  acre  to  B.,  the  remain- 
ing acre  is  then  cliargeable,  in  the  first  instance,  with  the  debt  as  against 
B.  as  well  as  against  A.,  because  when  B.  purchased  he  took  his  land 
chargeable  with  the  debt  in  the  hands  of  the  debtor  in  preference  to  the 
land  already  sold  to  A.  In  this  respect  we  may  say  of  him,  as  is  said  of 
the  heir,  he  sits  in  the  seat  of  his  grantor,  and  must  take  the  land  with  all 
its  equitable  burdens;  it  cannot  be  in  the  power  of  the  debtor,  by  the  act 
of  assigning  or  selling  his  remaining  land,  to  throw  the  burden  of  the 
judgment,  or  a  ratable  part  of  it  back  upon  A.  *  *  *  *  The  case  is 
not  analogous  to  a  rent  charge,  whicli  grows  out  of  the  land  itself,  and 
where  every  purchaser  of  distinct  parcels  of  a  tract  of  land  charged  with 
tlie  rent  takes  it  with  such  a  proportionate  part  of  the  charge."  But  in 
cases  of  mortgages  and  judgment  liens  "the  charge  on  the  land  (says  the 
learned  Chancellor)  is  only  by  way  of  security." 

'  Bates  «.  Ruddick,  3  Iowa,  423 ;  Massie  v.  Wilson,  16  Iowa,  391 ;  Barney 
t.  Myers,  28  Iowa,  473;  Parkman  v.  Welsh,  19  Pick.  241 ;  Job  v.  O'Brien,  2 
Humph.  34;  Dickenson  t.  Thompson,  8  B.  Mon.  321;  Green  «.  Ranagc,  18 
Oliio,  428. 


I'lKECUTIOX    SALES    OF    KEAL    PKOrEKTV.  207 

debtor,  for  satisfaction  of  his  judgment,  citlier  in  tlic  wliole,  or 
as  far  as  the  same  will  go,  before  such  senior  judgment  creditor 
can  come  upon  the  part  so  sold  under  the  junior  judgment.  ^ 
§  5G3,  In  United  States  v.  Duncan^"  the  court,  Dkuioiond, 
Justice,  say:  "The  doctrine  that  where  a  man  owns  different 
parcels  of  land  and  transfers  some  of  them,  himself  also  retain- 
ing some,  all  the  parcels  being  subject  before  the  transfer  to  a 
general  incumbrance  made  by  him,  the  part  which  he  still 
retains  shall  be  applied  to  the  payment  or  dischai-ge  of  that 
general  incumbrance,  rather  than  that  which  he  has  trans- 
ferred, is  founded  on  the  plainest  principles  of  equity.  It 
would  be  manifestly  unjust  that  those  persons  to  whom  he  had 
made  transfers  should  be  compelled  to  pay  oif  the  incum- 
brance when  he  held  land  which  would  satisfy  it." 

'  Wise  T).  Sheplierd,  13  111.  41 ;  Hurd  -y.  Eaton,  28  111.  122 ;  Marshall  'c. 
Moore,  36  111.  321.  The  reason  of  the  rule  for  selling  by  inverse  order  is, 
that  when  a  part  only  is  sold  by  the  debtor,  then,  in  equity,  the  unsold 
remainder  as  between  him  and  his  grantee  becomes  primarily  liable  for 
the  debt,  and  if  subsequently  sold,  the  purchaser  takes  it  liable  to  this 
charge,  for  if  the  prior  conveyance  be  of  record  so  as  to  confer  notice 
thereof,  then  the  second  purchaser  takes  no  better  right  than  his  vendor 
had.    Mason  «.  Payne,  Walker,  Ch.  459. 

=■  4  McLean,  G24." 


CHAPTEE   XVI. 

THE  WRIT— THE  LEVY— AND  NOTICE  OF  SALE. 

I.    The  "Wkit  op  Execution. 
II.    The  Levy. 
III.    The  Notice  of  Sale,  akd  Retukx. 

I.     The  Wfjt  of  ExEcu'nox. 

§  504.  If  a  judgment  be  valid,  an  execution  issued  tliereon 
cannot  be  impeached  collaterally.  It  is  good  until  superseded 
or  set  aside.  1  But  if  the  judgment  be  void,  an  execution 
thei-eon  is  void  also,-  and  may  be  so  treated  however  brought 
in  question. 

§  5G5.  An  execution  issued  on  a  dormant  judgment  is 
fraudulent  as  against  a  subsequent  hona  fide  purchaser,  who 
buys  while  the  judgment  is  dormant. -^  A  writ  of  venditioni 
exponas^  directing  a  sheriff  to  sell  lands  specifically  described 
as  condemned  by  judgment  in  attachment  proceedings,  is  not 
invalidated  by  a  division  of  the  county  after  the  teste  of  the 
writ  and  before  the  day  of  sale,  although  the  lands  to  be  sold 
bo  situated  in  the  new  county  formed  by  such  division;  but 
the  sheriff  may  go  on  and  sell,  and  the  sale  will,  in  that  respect, 
be  valid.  ^ 

§  506.  An  execution  and  sale  thereon  issued  against  two 
defendants,  after  the  death  of  one  of  them,  are  void  and  no 
title  passes  by  the  sale.  The  judgment  should  be  revived  as 
to  the  deceased  defendant.  The  plaintiff  cannot  proceed  other- 
wise without  the  aid  of  a  statute.  Execution  cannot  ofoao'ainst 
the  survivor  alone,  nor  can  it  go  against  the  survivor  and  the 

'  3  Btic.  Abt.  Execution,  A.;  Stewart  v.  Stoker,  13  Sergt.  &  R.  199;  Dur- 
ham V.  Ileaton,  23  111.  2G4. 
«  3  Bac.  Abt.  Execution,  A.;  Abbe  n.  Ward,  8  Mass.  79. 
'  Ball  t\  Shell,  21  Wend.  223;  Kellogg  v.  Griffin,  17  Johns.  274. 
"  Tyrcll  V.  Roundtrcc,  7  Pet.  404. 

(208) 


KXKCUTIOX    SALE.^    OF   KEAL    rilOPERTi'.  209 

(lead  defendant  jointly.     The  j^jroj^cr  course  is  to  revive  tlic 
judgment.^ 


§  5G7.  l]ut  in  the  state  of  Mississippi,  (under  the  code,)  it 
is  licld  that  where  judgment  is  against  two  or  more  defendants, 
and  one  dies,  execution  may  go  against  the  survivor  or  snrvi- 
vors;  and  that  the  writ  will  be  good  against  tlie  survivor  or 
survivors,  altliougli  it  omit  to  mention  the  death  of  the  co- 
defendant  who  is  dead.  2 

§  568.  In  Tennessee,  if  plaintiff  die  before  e.TCCution  issues, 
the  judgment  must  be  revived,  as  is  the  general  rule,  hy  scire 
facias.  If,  however,  execution  be  issued,  or  bears  teste,  prior 
to  his  death,  the  writ  may  be  levied  and  enforced  by  sale,  with 
the  same  effect  as  if  the  plaintiff  were  still  living. -"^ 

§  569.  It  is  held  in  Illinois  that  although  it  is  the  more 
proper  practice  where  a  judgment  creditor  dies  before  execu- 
tion issues,  to  "  recite "  in  the  execution  "  the  fact  of  the 
recovery  of  the  judgment,  the  death  of  the  defendant,"  and  to 
also  state  that  notice  of  the  judgment  has  been  given  to  the 
administrator  of  the  deceased;  and  thereupon  command  the 
sheriff  to  levy  the  lands  of  the  decedent  which  he  owned  at  the 
time  of  his  death,  yet  an  execution  issued  against  the  defend- 
ant in  the  ordinary  way  will  be  substantially  good.-^ 

§  570.  The  execution  must  conform  substantially  to  the 
judgment.     A  want  thereof  will  avoid  the  sale.^ 

§  571.  Execution  against  a  party  for  costs  created  by  him- 
self, there  being  no  judgment  against  him,  is  void,  and  so  is 
any  sale  made  by  virtue  thereof.*' 

§  572.  If  there  be  not  substantial  correspondence  between 
the  execution  and  the  judgment,  a  sale  made  on  such  execu- 
tion may  be  impeached  in  a  collateral  proceeding.''     But  a 

'  Erwiu  V.  Dundas,  4  IIow.  50. 
'-  Wade  V.  Watt,  41  Miss.  248. 
=  Gregory  v.  Thadwell,  3  Cold.  (Tenn.)  390. 
*  Wright  V.  Walbaum,  39  111.  554,  5G3. 

'Commonwealth  v.  Fisher,  3  J.  J.  Marsh.  137;  Crittcndcu  v.  Leitcns- 
dorfcr,  35  Mo.  239. 
'^  Washington  v.  Irving,  Mart.  &  Ycrg.  45. 

'  Rider  v.  Ale.xandcr,  1  Chip.  274;  Butler  v.  Ilaynes,  3  N.  II.  21. 
14 


210  JUDICIAL    AXD   EXECUTION    SAUCS. 

mere  clerical  variance  ^vill  not  be  cansc  for  sucli  collateral 
iinpeaclinient.i 

§  573.  By  statute,  in  Indiana,  process  of  execution  is 
required  to  be  sealed  with  the  seal  of  the  court,  and  it  is  there 
held  that  an  execution  for  a  foreclosure  decree  not  so  scaled,  is 
invalid,  and  that  a  sale  thereon  by  the  sheriff  is  void  and  his 
deed  will  not  confer  title  on  the  purchaser  at  such  sale.- 

§  574.  Though  an  execution  cannot  issue  against  a  party 
that  is  dead  without  revival,-'  yet  if  there  be  several  persons 
plaintiif  in  a  judgment  and  one  dies,  it  is  held,  in  Massa- 
chusetts, that  it  may  still  issue  in  the  joint  names  of  the 
plaintiffs.-^ 

§  575.  ^yiiere  there  are  several  judgments  against  the  same 
debtor  and  none  of  the  judgments  are  liens,  then  the  first 
execution  which  is  levied  takes  priority. ^ 

II.     The  Le\-,-. 

§  570.  The  }<ivj  cannot  be  made  after  the  return  day  of  the 
wrif 

§  577.  The  levy  must  describe  the  land  levied  upon  with 
sufficient  certainty  to  enable  it  to  be  identified  without  other 
evidence.''  Therefore,  where  all  the  calls  in  a  Ie\'y  are  properly 
■answered,  and  yet  the  description  is  such  that  the  land  levied 
on  could  not  therefrom  be  identified  or  certainly  found,  the  levy 
is  void  for  uncertainty.  It  should  be  such  that  a  sheriff  could 
know  what  to  put  a  party  in  possession  of.^  And  so  a  levy  of 
"  all  the  nnsold  land  in  a  forty  thousand  acre  tract."^  Likewise 

'  Butler  V.  Haynes,  3  N.  H.  21. 

2  Ins.  Co.  V.  Ilalleck,  C  Wall.  55G. 

3  Hiklrcth  v.  Thompson,  16  Mass.  191. 

*  Hamilton  v.  Lyman,  9  Mass.  14;  Bowdoin  v.  Jordan,  9  Mass.  IGO. 
^  Lathrop  v.  Brown,  23  Iowa,  40. 

*  3  Bac.  Abt.  Execution,  734;  Caines  v.  Clarke,!  Bibb.  G08;  Barnard  r. 
Stevens,  2  Ark.  429. 

'  Iluddlestone  v.  Garrett,  3  Humph.  G29;  Proud  v.  Pullum,  3  Yerg.  388; 
Shields  «.  Bates,  5  J.  J.  Marsh.  13;  Williamson  v.  Perkins,  1  Ilarr.  &  J. 
449 ;  Summers  v.  Moore,  2  McLean,  59. 

8  Chadbournc  v.  Mason,  48  Maine,  389,  393;  Gault  v.  Woodbridgc,  4 
McLean,  329. 

8  Iluddlestone  v.  Garrett,  3  Humph.  C29. 


KXIXUTION    SALES   OK    KKAf.    I'lIorKRTV.  211 

a  levy  of  live  hundred  acres  to  bo  taken  oli'  tlie  niost  nortlierly 
side  of  a  Avidow's  dower  lands,  without  other  identity  of  the 
lands,  is  void.^ 

§  578.  Though  a  levy  must  ordinarily  describe  the  land 
with  such  certainty  as  will  enable  an  officer  to  find  and  identify 
it,  yet  a  levy  in  that  respect  defective  may  bo  cured  and  ren- 
dered valid  by  the  more  perfect  and  sufficiently  correct  descrip- 
tion contained  in  the  appraisement,  Avhere  the  proceeding  is 
under  an  ai^praisement  law;-  and  so  likewise  a  defective  levy, 
as  to  the  description  of  the  land,  is  cured  b}'  a  correct  descrip- 
tion in  the  sheriff's  deed.^ 

§  579.  If  several  judgment  creditors  have  judgments  of 
equal  date,  and  whose  judgments  arc  in  law  all  liens  on  the 
real  estate  of  the  same  defendant,  the  one  that  levies  thereon 
iirst  obtains  priority.-^ 

§  580.  i\nd  though  the  proper  course  is,  after  levy  of  ix  fieri 
facias  on  lands,  and  return  thereof  without  sale,  to  sue  out  a 
writ  of  vendl.  exponas  against  the  property  levied  on,  yet  the 
plaintiff  will  not  lose  the  lien  of  his  levy  if  instead  thereof 
he  causes  to  be  issued  an  alias  fi,.  fa.  and  sells  the  property 
thereon. 

§  581.  The  latter  course,  though  irregular,  is  not  a  waiver 
of  the  previous  levy.^  Por  the  alias  fi.fa.  by  relation  reaches 
back  to  the  levy  of  the  original  writ  and  preserves  its  lien  so 
as  to  bind  the  property  and  prevent  priority  of  another  loxy 
made  in  the  interim  upon  the  same  proj^erty,  if  the  subsequent 
or  alias ^.y«.  has  issued  in  due  time.*' 

§  582.  Where,  by  law,  the  officer  holding  an  execution  is 
required  to  first  exhaust  the  property,  real  and  personal,  of  a 
principal  debtor,  before  proceeding  against  that  of  a  security 
of  such  debtor,  for  stay  of  .execution,  it  is  held  that  if  by 
reason  of  the  principal's  death,  or  incumbrance  of  his  prop- 

'  Sliield  V.  Batps,  5  J.  J.  Marsh.  13;  Gault  t).  Woodbridge,  4  I^IcLeaii,  329. 
-  Summers  v.  Moore,  2  McLean,  59. 

3  Iloppino;  t.  Burnam,  3  G.  Green,  39;  Summers  v.  Moore,  2  McLean,  59. 
•>  Ilocldiill  v..  Ilanna,  15  How.  189,  195,  19G,  197;  Adams  v.  Dyer,  8  Jolins. 
347,  350;  Waterman  v.  Ilaskin,  11  Johns.  228;  llalstcad  v.  Ilaskin,  ib. 
'  Bouton  V.  Lord,  10  Ohio  St.  454. 
t  Brasficld  r.  AVhitakcr,  4  Hawks,  309. 


212  JUDICIAL   AND    EXECUTION    S.il.ra. 

orty,  it  cannot  be  immediately  readied  by  the  execution,  the 
amount  of  the  writ  may,  in  such  case,  be  made  out  of  the 
]M'operty  of  the  surety.  The  creditor  is  not  bound  to  remove 
the  obstacles  that  prevent  a  levy  of  the  principal's  property.  ^ 

§  5S3.  Property  placed  by  a  court  of  competent  jurisdiction 
in  the  hands  of  a  receiver,  whether  rightfully  or  wrongfully  so 
])laced,  is  in  legal  custody,  and  is  not  subject  to  execution. 
"  To  permit  it  to  be  levied  and  sold,"  say  the  Supreme  Court 
of  Pennsylvania,  "would  at  once  raise  a  conflict  of  jurisdic- 
tion."^ 

§  584.  In  Minnesota,  it  is  held  that  where  a  judgment  is  a 
lien  upon  real  property,  no  formal  levy  of  an  execution  emanat- 
ing from  such  judgment  is  necessary  to  be  made  on  such  prop- 
erty as  preliminary  to  execution  sale  thereof;  and  that  the 
])rovision  of  the  statute  of  that  state  which  declares  that 
"  until  a  levy  property  is  not  affected  by  the  execution,"  applies 
to  a  levy  upon  personal  property  only.^ 

§  585.  That  court  hold  also  that  where  a  lev}'-  is  required 
the  sheriff  is  not  bound  to  return  the  particular  facts  consti- 
tuting the  levy;  that  the  general  return  that  he  "levied  upon  " 
property,  is  sufficient,  and  cannot  be  disputed  except  in  a  pro- 
ceeding directly  against  the  officer  or  his  sureties  for  a  false 
]-eturn.-^ 

§  586.  A  levy  grossly  excessive  will  be  deemed  fraudulent, 
and  a  sale  thereon  will  be  set  aside ;  and  where  on  such  levy  a 
sale  of  lands  en  masse  is  made,  without  its  appearing  that  the 
land  was  first  offered  in  less  parcels,  the  inference  will  not 
arise  that  sucli  was  the  course  pursued  by  the  officer,  but  rather 
the  reverse  thereof." 

§  587.  A  levy  of  property  of  the  value  of  eight  hundred 
dollars  for  a  claim  of  twenty-one  dollars  is  grossly  excessive 

Clicatham  v.  Brien,  0  Head.  (Tenn.)  5.j2. 

"■  Robiiisou  V.  Atlantic  &  G.  W.  K.  li.  Co.  GG  Pcun.  St.  IGO,  1G2;  3  Story, 
Eq.  Jur.  Sec.  83^. 

=  Tallies  v.  Brawley,  3  I^Iiiin.  277;  Folsom  v.  Carli,  5  Minn.  833,  337. 

*  Tallies  v.  Brawley,  3  Minn.  277;  Tvliorcrr.  Terrill.  4  Minn.  407;  Folsom 
V.  Carli,  5  Minn.  333." 

^  Cook  V.  Jenkins,  30  Iov,u,  452. 


KXKCUTION    SALES    OF   KEAL   ritOrEKlT.  213 

and  oppressive.  In  the  language  of  tlie  court,  in  Cooh  f. 
Jenkins,''-  it  is  "a  fraud  in  fact  upon  defendant,"  and  "we 
know  of  no  principles  of  equity  that  will  sustain  proceedings 
which  work  such  gross  injustice  and  oppression,  except  in  cases 
where  innocent  parties  claim  rights  under  them." 

III.     The  Kotice  of  Sale,  and  Eetukx. 

§  5SS.  "  The  purchaser  depends  on  the  judgment,  the  levy, 
and  the  deed.  All  other  questions  are  between  the  parties  to 
the  judgment  and  the  officer  selling."^ 

§  5S9.  It  matters  not  then,  as  respects  the  rights  of  a  lona 
fide  purchaser  at  sheriff's  sale,  whether  there  be  a  legal  notice 
of  the  sale,3  or  a  return  of  the  officer  scliine:.*  And  thou<rh 
the  purchaser  relies  on  the  judgment  execution,  the  levy  and 
the  deed,  yet  when  the  purchaser  at  sheriff's  sale  shows  an 
authorized  execution  and  deed,  a  correct  levy  and  notice  is  pre- 
sumed, A  judgment,  execution,  and  deed  from  the  sheriff"  are 
sufficient  to  support  the  title  of  a  purchaser,  without  proof  of 
a  levy,  though  the  return  be  incorrect,  or  there  be  no  return.^' 
The  purchaser  is  not  bound  to  sec  that  the  sheriff'  makes  a 
return. ° 

§  590.  If  after  levy  and  notice  of  sale  on  one  writ  of  execu- 
tion another  -writ  be  received  by  the  officer  against  the  same 
defendant,  he  can  only  sell,  if  no  furt.ier  notice  be  given,  on 

'  30  Iowa,  454. 

2  Wheaton  v.  Sexton,  4  Wheat.  503 ;  Brooks  v.  Rooncy,  11  Geo.  433 ;  Sulli- 
van V.  Hearndon,  11  Geo.  294;  Philips  v.  Coffee,  17  111.  154. 

*  Lawrence  v.  Speed,  2  Bibb.  401 ;  Whittaker  v.  Sumner,  7  Pick.  551 ; 
Wlieaton  v.  Se.xton,  4  Wheat.  503,  506 ;  IMcIntire  «.  Durham,  7  Ired,  151 ; 
Maddox  v.  Sullivan,  2  Rich.  Eq.  4;  Natchez  v.  Minor,  10  S.  &M.  240; 
Kilby  V.  Haggin,  3  J.  J.  Marsh.  208 ;  Brooks  v.  Ilooney,  11  Geo.  423 ;  Draper 
V.  Brysou,  17  Mo.  71;  Philips  v.  Coffee,  17  111.  154. 

■•  Wheaton  v.  Sexton,  4  Wheat.  503;  Hopping  v.  Burnam,  2  G.  Green,  89, 
44;  Brooks  v.  Roouey,  11  Geo.  425;  Webber  v.  Cox,  6  Mon.  110;  State  v. 
Salycrs,  19  Ind.  432;  Philips  v.  Coffee,  17  III.  154. 

*  Brooks  v.  Rooney,  11  Geo.  423 ;  Hopping  v.  Burnam,  2  G.  Green,  39, 44; 
Evans  v.  Davis,  3  B.  Mon.  344;  Mclntire  v.  Durham,  7  Ired,  151;  Jackson 
V.  Young,  5  Cow.  259;  Brooks  v.  Roonej^,  11  Geo.  423;  Philips  v.  Coffee,  17 
III.  154. 

«  State  V.  Salycrs,  19  Ind.  432. 


214  JUDICLVX,    AKD   EXECUTION    SALES. 

tlie  first  writ.  The  certificate  of  such  sale  should  refer  to  but 
the  oue  writ,  and  however  the  proceeds  of  sale  may  be  applied, 
yet  the  whole  amount  thercof  must  be  mentioned  as  the  con- 
sideration in  tlio  certificate  of  sale,  and  in  tlic  deed  when 
given. ^ 

§  591.  The  purchaser  Avill  not  be  prejudiced  by  omission 
of  the  oflScer  to  return  and  file  a  certificate  of  sale,  under  the 
statute.     The  requirement  is  only  directory." 

'  ]Mascrafl  v.  VanAntwerp,  3  Cow.  034. 

■•'  Jackson  v.  Young,  5  Cow.  2GD,  270.  By  tlic  statute,  in  New  York,  the 
certificate  of  the  sheriff's  sale  is  required  to  be  filed  in  the  clerk's  oQice 
by  the  sheriff.  In  the  case  here  cited  it  was  claimed  that  omission  to  file 
the  certificate  voided  the  sale;  but  the  court  held  the  statute  to  l>c  direct- 
ory only. 


CHAPTER   XVII. 

THE  SALE. 

I.  By  wnoii  TO  EE  Made\ 

II.  How  TO  BE  Made. 

III.  Who  May  kot  Buy. 

IV.  Sales  Ikregulak,  oil  U^■DEIl  Ikkegul.m:   Phoces.s   or  Judo- 

MENTS. 

Y.  Sales  Made  After  Death  of  Executiox  Defexdant. 

VI.  Sales  whex  there  is  a  Valuation  Law. 

Vll.  Sales  at  Avnicii  the  Execution  Creditor  is  Purchaser. 

Vlll.  Sales  Made  After  Return  Day  op  the  Execution. 

IX.  Sales  to  Third  Persons;  Bona  Fide  Purchasers. 

X.  Void  Sales. 

I.     By  v/iiom  to  ee  Madk. 

§  502.  If  the  direction  of  tlie  writ  is  simply  to  tlic  sheriff 
or  officer  as  sncli,  then  it  may  be  executed  by  himself  or  by  his 
deputy;  but  if  directed  to  the  officer  by  his  personal  name,  as 
well  as  by  his  title,  then  he  ranst  execute  it  himself  in  person.^ 
In  the  case  cited  from  2d  "Washington,  the  court  say:  "This 
is  a  writ  directed  to  the  sheriff,  which  means  as  well  the  deputy 
as  the  high  sheriff.  It  is  a  Avrit,  and  all  writs  may  be  executed 
by  a  deputy  sheriff.  It  is  not  a  judicial  act;  it  is  not  a  case 
excepted  from  the  .general  authority  given  to  deputy  sheriffs, 
and,  therefore,  I  can  see  no  reason  why  he  may  not  execute  the 
inquisition."^ 

§  593.  In  the  same  case  the  court  lay  down  the  general  rule 
to  be,  in  the  absence  of  statutory  regulation  to  the  contrary, 
that  where  the  "  process  "  is  directed  to  the  sheriff  generally, 
and  not  by  his  name,  if  the  high  sheriff  be  not  required  by 
the  command  of  the  writ  to   go  in  person,  he  may  act  by 

'  8  Bac.  Abt,  Uudcrslieriff,  G7G;  Wroc  v.  Harris,  3  Wash.  C.  C.  120;  Til- 
lotson  V.  Cheatham,  3  Johns.  G3. 
MYroe  v.  Uarris,  3  Wash.   C.  C.  120,  127;    Tillotson  v.  Cheatham,  2 

Johns.  G3. 

(215) 


21 G  JUDICIAL   AXD   EXECUTION   SALr:S. 

dcpiit}'.  ^  The  term  "  j^rocess  "  iTsed  by  the  court  is  a  coiniDrc- 
licnsivc  term,'  broad  enough  to  cover  cases  of  executions  gen- 
erally. The  execution  of  an  clerjit  is  referred  to  by  the  court 
as  v.-itliin  the  powers  of  the  deputy,  which,  as  to  the  exercise 
of  power,  very  nearly  corresponds  with  the  act  of  selling  on 
execution,  where  the  latter  practice  prevails. 

§  594.  A  sheriff  cannot  sell  on  an  execution  in  which  he  is 
plaintiff,  nor  in  liis  own  behalf,  where  he  has  purchased  the 
benefit  of  the  writ.^ 

§  595.  Under  the  act  of  Congress  of  1789,  it  is  held  by  the 
United  States  Supreme  Court  that  a  United  States  marshal 
may  proceed  to  sell  lands  on  execution  after  his  removal  from 
office  if  the  writ  was  in  his  hands  at  the  time  of  his  removal, 
and  that  the  sale  will  be  valid,  if  in  other  respects  unexcep- 
tionable. Tlie  writ,  in  the  particular  case  referred  to,  was  a 
venditioni  exponas  and  was  in  the  possession  of  the  officer  at 
tlie  time  of  his  removal. 

%  59G.  The  act  referred  to  reads,  in  this  respect  as  follows: 
"  Every  marshal  or  his  deputy,  when  removed  from  office,  or 
when  the  term  for  which  the  marshal  is  appointed  shall  expire, 
shall  have  power  notwithstanding  to  execute  all  such  precepts 
as  may  be  in  their  hands,  respectively,  at  the  time  of  such 
removal  or  expiration  of  office,"  etc.,  and  it  is  held  by  the 
United  States  Supreme  Court,  iji  the  same  case,  that  the  act  of 
May  7th,  1800,  does  not  repeal  the  clause  in  that  of  1798, 
above  recited;  that  in  respect  to  the  same  subject  it  is  merely 
cumulative  in  the  remedy  afforded.^ 

§  597.  The  case  of  Miner  v.  Cassat^  was  an  action  of  eject- 
ment involving  the  validity  of  the  marshal's  sale  in  the  case 
previously  cited  of  DooliUle  v.  Bryan^  as  to  the  power  of  the 
marshal  to  complete  execution  of  a  writ  in  his  hands  after 
removal  from  office.     The  state  court  of  Ohio,  conforming  its 

'  Wroc  V.  Harris,  3  Wash.  C.  C.  120,  127,  128;  Tillotson  «.  Cheatham,  2 
Johns,  G:3. 

-  Riner  v.  Staccy,  8  Ilumpli.  288;  Chambers  v.  Thomas,  3  A.  K.  Marsh. 
53G;  ]V[ay  v.  Waters,  1  McCord,  470. 

3  Irwia'W.  Brian,  14  How.  5G3;  Minor  v.  Cassat,  3  Ohio  St.  108. 

■»  3  Ohio  St.  198. 


ICXECUTION    SALES    OF   KI'LiL    I'KOI'EETV.  217 

decision  to  that  of  the  United  States  Supreme  Court,  sustained 
the  power  of  the  ex-marshal  to  sell,  and  held  the  title  under 
the  marshal's  sale  valid  in  the  action  of  ejectment.  The 
Supremo  Court  of  Ohio  affirmed  the  decision  of  tlic  court 
below,  thereby  holding  the  ruling  of  the  United  States  Supremo 
Court  on  the  subject  conclusive. 

§  598.  By  the  constitution  of  our  respective  state  and  fed- 
eral judiciaries,  the  United  States  Court  is  the  proper  and 
controling  tribunal  to  decide  upon  the  effect  of  the  enforce- 
ment of  its  own  process.  Hence  its  decision  was  rightly  defer- 
red to  by  the  state  court. 

II.       How   TO    BE   MAr>E. 

g  599.  Execution  sales  are  to  be  made  at  public  auction;' 
for  money  in  hand,"  and  to  the  highest  unconditional  bidder. ^ 
They  must  be  made  by  the  officer  himself  or  by  his  geiieral 
deputy,  as  we  have  seen  under  the  last  preceding  head. 

§  COO.  When  the  land  is  divided  into  several  separate  par- 
cels, though  of  one  and  the  same  tract,  tlie  several  tracts  can- 
not bo  sold  together  as  in  a  body,  but  must  be  sold  separately 
with  suitable  identity  of  the  several  lots.  If  sold  in  the  aggre- 
gate, the  court,  on  motion,  will  set  the  sale  aside.  "  Sales  iu 
mass  of  real  estate  held  in  parcels  are  not  to  be  countenanced 
or  tolerated."-* 

§  601,     And  so,  if  the  tract  be  an  entirety,  it  is  the  duty  of 

'  3  Bouvier,  581. 

'■^  Noy,  Miii'.  Ch.  43 ;  Mumford  v.  Armstrong,  4  Cow.  5o3 ;  GrifRu  ■». 
Thompson,  2  How.  244;  Swope  v.  Adery,  5  Ind.  213;  Williamson  v.  Berry, 
8  How.  544;  Iluslimaclier  v.  Harris,  2  Wrip;lit,  498;  B'lglcy  v.  Rislier,  (J3 
Pcnn.  St.  152;  Sauer  «.  Steinbaeur,  14  Wis.  70. 

=  Swopo  V.  Adery,  5  Ind.  213. 

'' Jackson  v.  Newton,  18  Johns.  355;  McLaughlin  v.  Scott,  1  Bin.  61; 
Wheeler  v.  Kennedy,  1  Ala.  292 ;  Adams  v.  Kiser,  7  Dana,  208 ;  Garrett  v. 
Moss,  20  IlL  549;  Tyler  v.  Wilkinson,  7  Ind.  450;  Phelps -y.  Conover,  25 
111.  309;  Meeker  v.  Evans,  25  111.  322;  Piel  v.  Brayer,  30  Ind.  332;  Winters 
V.  Buford,  G  Coldw.  328.  In  Indiana,  selling  in  parcels  is  required  by 
statute,  and  is  alike  applicable  to  mortgage  sales  or  sales  on  execution.  30 
Ind.  332. 


218  JUDICIAL   AND   EXECUTION   SALES. 

tlie  officer  to  sell  in  parcels,  if  susceptible  of  division,  unless 
the  sale  of  the  whole  is  necessary  to  satisfy  the  writ.^ 

§  G02.  Though  it  is  the  duty  of  the  officer  to  sell  property 
in  the  exercise  of  a  fair  discretion  and  to  the  best  advantage, 
so  as  to  make  the  debt  demanded  by  the  execution  without 
unnecessary  sacrifice  of  the  debtor's  property  ^^  yg^;^  having 
levied  on  lands  which  were  then  but  one  body,  but  which  after 
levy  and  before  sale  are  divided  by  the  debtor  into  several  lots, 
the  sheriff  is  "  not  bound  upon,"  say  the  court,  "  to  sell  the 
lots  separately,"  according  to  such  subdivision.  lie  may 
exercise  in  respect  thereto  an  honest  discretion, ^ 

§  603.  In  New  York  it  is  held  that  where  premises  are 
owned  by  several  execution  defendants  in  the  same  execution, 
their  separate  interest  may  be  sold  together  at  once,  unless 
some  one  of  them,  being  entitled  to  redeem  from  the  sale, 
require  the  separate  interests  to  be  sold  separately.  If  so 
required  it  must  be  so  sold,  under  the  jS'ew  York  statute.'*, 

§  604.  In  Ileicson  v.  Deygerf^  it  is  held  by  the  Sujoremc 
Court  of  New  York  that,  "  The  projoer  course,  both  on  sales  of 
real  and  personal  property  (on  execution,)  is  to  sell  only  so 
much  of  the  property  charged  as  will  probably  satisfy  the 
execution,  and  which  can  conveniently  and  reasonably  be  sold 
separately.  A  party  who  sells  under  a  power  is  not  bound  to 
sell  at  once  all  the  projDcrty  bound  by  the  power,  and  in  many 
cases  it  would  be  an  act  of  great  oppression."  It  was  also  held 
in  the  same  case  that  if  he  sells  the  whole  to  satisfy  a  j^art  of 
the  charge  upon  it,  that  he  cannot  sell  it  again  or  a  second  time 
to  satisfy  newly  matured  and  growing  installments,  unless  it 
be  redeemed  by  the  execution  debtor. 

§  605.  To  avoid  exhausting  the  lien  by  one  sale  only,  the 
sale  should  be  of  only  so  much  of  the  proj^erty  as  is  requisite 

'  Kinny  v.  Noble,  51  111.  113,  121;  Bcny  v.  Griffetli,  2  Ilarr.  &  Gill.  337; 
Ilcwson  V.  Daygert,  8  Johns.  333;  Winters  v.  Buford,  G  Coldw.  328. 

"Kiser  v.  Ruddick,  8  Blackf.  382,  383;  McLean  Bank  v.  Flagg,  31  111. 
290;  Phelps  v.  Cowen,  25  111.  309. 

^  Kiser  v.  Ruddick,  8  Blackf.  382,  383. 

*  jSTiclson  v.  Nielson,  5  Barb.  5G5. 

*  8  Johns.  333,  335;  Davis  v.  Abbott,  3  Ind.  137;  Wheeler  v.  Kenedy,  1 
Ala.  292;  Meeker  ?).  Evans,  25  III.  322;  Day  v.  Graham,  1  Gilm.  435. 


EX  EC  en  ox  salp:s  of  eeal  rEorEH'iT.  219 

to  satisfy  the  amount  due.  But  the  court  will  not  interfere  by 
injunction  to  prevent  a  second  sale.  Tlie  party  Laving  title 
lias  his  remedy,  if  injured,  and  no  execution  sale  of  the  realty 
will  affect  the  title  if  the  lands  be  not  subject  to  sale  on 
execution.^ 

§  60G.  In  some  of  the  states  it  is  hold  that  if  more  be  sold 
on  execution  than  will  satisfy  the  writ,  that  the  sale  is  void.^ 
But  if  the  excess  be  very  small  and  results  from  a  mere  mis- 
take in  calculation,  or  other  unintentional  circumstance,  the 
sale  will  not  be  set  aside.  ^ 

§  607.  Ko  bid  may  be  received  but  what  is  unconditional; 
the  officer  himself,  and  not  the  bidders,  is  to  fix  the  terms  of 
sale.'* 

§  COS.  The  officer  selling  has  power  to  adjourn  the  sale  and 
to  sell  on  the  day  to  which  it  is  adjourned.  On  the  subject  of 
adjournment  he  has  a  sound  discretion,  which  must  be  exercised 
fairly,  and  as  to  his  judgment  is  best  for  all  the  j)arties  con- 
cerned. ^ 

§  609.  The  case  of  Wolf  v.  Van  Ifetre'^  involved  the 
validity  of  an  adjournment  made  by  the  attorney  of  the  execu- 
tion plaintilf.  The  sheriff  levied  an  execution  on  land,  and 
gave  notice  of  sale,  but  from  some  cause  did  not  attend  at  the 
time  and  place  of  intended  sale.     Foreseeing  his  non-attend- 

'  Ilewson  V.  Dej-gert,  8  Johns.  333,  33.j. 

'^  Patterson  v.  Carueal,  3  A.  K.  Marsh,  G18;  Pepper  v.  Commonwealth,  G 
Men.  30;  Davidson  v.  McMurtr}^  3  J.  J.  Marsh,  GS;  Carlisle  v.  Carlisle,  7 
J.  J.  Marsh,  625 ;  Stover  v.  Boswcll,  3  Dana,  235 ;  Addison  v.  Crow,  5  Dana, 
277;  Adams  v.  Kiser,  7  Dana,  209;  Isaacs  v.  Gearhart,  12  B.  Mon.  231; 
Gearhart  v.  Thorp,  9  B.  Mon.  35. 

="  Southard  's.  Pope,  9  B.  Mon.  2G3;  Adams  «.  Kiser,  7  Dana,  208;  Morri- 
son  v.  Bruce,  9  Dana,  216. 

■*  Swope  V.  Ardery,  5  Ind.  215 ;  Chapman  v.  Harwood,  8  Blackf.  82. 

'  Swortzcll  V.  Martin,  16  Iowa,  519;  Kelly  ?>.  Green,  G3  Penn.  St.  299; 
Phelps  V.  Conover,  25  111.  309;  Tinkom  v.  Purdy,  5  Johns.  346.  But  see  to 
the  contrary  Patten  v.  Stewart,  26  Ind.  395.  This  adjournment,  however, 
was  made  atler  the  sale  was  enjoined.  When  the  injunction  was  removed 
notice  anew  became  necessary.  In  Louisiana,  however,  the  power  to  ad- 
journ is  denied  by  the  settled  doctrine  in  the  courts  of  that  state.  ]\Iont- 
gomery  v.  Barrows,  19  La.  Ann.  169.  Nor  can  plaintiffs  attorney  adjourn 
the  sale  by  authority  of  the  officer.    Wolf  v.  Van  Metre,  27  Iowa,  34S. 

«  27  Iowa,  348. 


220  JUDICIAL   AND   EXECUTION   SALES. 

aiice  lie  autliorized  the  attorney  of  tlie  execution  plaintiff  to 
adjourn  tlie  sale.  The  return  showed  that  the  sale  was  ad- 
journed by  such  attorney  for  want  of  bidders.  It  was  adjourned 
ibr  two  days;  sale  was  then  made  under  the  adjournment  by 
the  sheriff.  The  Supreme  Court  of  Iowa,  Beck,  Justice,  held 
tlie  sale  to  be  invalid.  That  court  say:  "  To  permit  the  sheriff 
to  authorize  the  attorney  of  either  party  to  discharge  the  duty 
for  him,  would  open  a  wide  door  to  fraud  and  abuse."  And 
that  it  was  "a  gross  irregularity  for  the  sheriff  to  entrust  his 
business  with  the  plaintiff' 's  attorney." 

§  GIO.  Executions  are  to  be  enforced  and  satisfied  in  their 
order  of  priority.  In  Indiana  it  is  held  that  when  different 
\v'rits  enforceable  under  different  laws  are  holden  by  the  officer 
at  one  and  the  same  time  against  the  same  defendant,  each 
shall  be  enforced  according  to  its  legal  effect  and  in  order  of 
priority. 

§  Gil.  The  Supreme  Court  of  Indiana,  in  Harrison  v. 
Sipp,siij:  "Where  a  sheriff  has  several  executions  in  his 
bands,  governed  by  different  laws  as  to  the  terms  upon  which 
the  property  levied  upon  is  required  to  be  sold,  it  is  evident 
that  he  cannot  possibly  comply,  at  a  single  sale,  with  the 
requisitions  of  each  execution.  If  the  property  is  divisible, 
however,  he  may  sell  under  each  a  sufficient  portion  for  its 
satisfaction.  It  would  seem  that  in  such  case  the  obvious 
course,  and  the  only  one  by  which  the  law  can  be  complied 
with  i^  to  commence  with  the  execution  in  his  hands  first  to 
be  satisfied  and  sell  enough  under  the  law  of  the  contract  by 
s\-hich  it  is  governed  to  make  the  sum  demanded  by  it,  and 
then  to  sell  under  the  others,  in  their  order,  in  the  same  way, 
until  all  are  satisfied,  or  the  property  is  exhausted.  But  when 
the  property  is  not  susceptible  of  a  division  this  cannot  be 
done."  In  the  latter  case,  the  same  court  hold,  that  "the 
sheriff  should  ordinarily  proceed  to  sell  first  upon  the  execu- 
tion upon  the  oldest  judgment,  or  for  the  payment  of  the  debt 
first  to  be- satisfied  out  of  the  proceeds.  He  would  thus  com- 
ply with  the  law  as  far  as  it  would  be  in  his  power  to  do  so, 
and  the  least  injury  would  be  likely  to  result  to  the  rig] its  of 
the  various  parties."     And  the  court  further  hold  that  if  the 


EXECUTION   S^VLES   OF   EEAL    PROrEETY.  221 

property  be  appraisable  under  the  elder  execution  or  older  lien, 
tlien  sale  under  the  appraisement  law  as  for  the  whole  where 
the  property  is  indivisible  is  legal  if  made  in  proper  conformity 
to  such  law  of  appraisement.  But  if  not  so  made,  that  the 
sale  will  be  set  aside. ^ 

§  G12.  It  is  not  in  itself  an  objection  to  a  bid  at  a  slieriif 's 
sale  of  lands  on  execution  that  it  is  made  by  letter,  provided 
there  be  no  unfairness  about  it,  and  it  be  publicly  cried  as  bids 
usually  are.  If  there  be  no  advance  on  a  bid  so  offered,  the 
officer  will  be  justified  in  selling  on  it,  as  he  would  be  in  sell- 
ino-  on  a  bid  orally  made,  all  other  circumstances  being  the 
same.  "But  the  creditor  has  aright  to  insist  on  all  the  forms." 
If  however  the  bid  be  not  publicly  cried  at  the  appointed  place 
of  sale,  but  be  received  and  privately  noted  in  the  house, 
instead  of  at  the  door  of  the  place  appointed,  or  there  be  other 
evidences  of  collusion  or  unftiirness,  the  sale  will  be  set  aside." 
And  if  in  such  case  the  return  on  the  execution  be  of  a  sale  to 
the  person  so  bidding,  and  the  certificate  of  purchase  be  given 
to  and  in  the  name  of  another  and  difierent  person,  the  certifi- 
cate will  be  inoperative  and  void.  In  the  language  of  the 
Supreme  Court  of  Illinois,  "there  must  be  entire  conformity 
in  all  these  proceedings,  in  the  return,  the  certificate,  and  the 
deed,  and  if  they  do  not  possess  it  they  will  be  invalid.  Davis 
V.  JfoVickers,  11  111.  E.  320."  And  that  issuing  the  certificate 
to  a  different  person  than  the  supposed  purchaser  was  a  void 
act  under  Chap.  57,  Sec.  12,  E.  S.,  1845.3 

§  613.  It  is  uniformly  holden  in  Illinois  that  where  lands 
or  lots  which  could  be  divided  and  sold  in  parcels  are  sold  in 
a  mass,  such  sale  is  irregular  and  is  subject  to  be  set  aside. ^ 

§  G14.     The  case  of  Greenup  v.  Stol'er'^   is  adjudged  to  be 

'  8  Blackf.  455.    See  also  Bronson  v.  Kinscy,  1  IIow.  311. 

'  Dickerman  i;.  Burgess,  20  111.  266.  lu  this  case  the  court  say :  "  "Wc 
do  not  mean  to  be  understood  as  objecting  to  receiving  a  bid  by  letter, 
but  the  officer  must  cry  the  bid,  and  if  there  be  no  advance  on  it  he  -would 
be  justified  in  selling  at  the  bid." 

=  Dickerman  v.  Burgess,  20  111.  280;  Davis  v.  McVickcr.s,  11  111.  320. 

*  Phelps  ?j.  Conover,  25  111.  313;  Day  v.  Grayham,  1  Gilm.  435,  and  4 
Gilm.  338;  Ross  v.  Weed,  5  Gilm.  171 ;  Stewart  r.  Gay,  5  Gilm.  442. 

» 13  111.  24. 


222  JUDICLU-.    AND    EXECUTION    SALES. 

no  oxccptlou  to  the  rule,  for  tliat  in  that  case  the  sale  ^vas  of 
but  a  single  quarter  section,  and  it  was  not  made  to  appear  that 
it  could  have  been  advantageously  divided,  or  that  any  sub- 
division of  it  would  have  satisfied  the  writ.^ 

§  615.  When  there  is  a  body  of  land  levied  on  which  is 
composed  of  several  contiguous  tracts,  each  tract  is  to  be 
offered  separately,  the  officer  using  his  best  judgment  as  to 
subdividing  into  lots;  failing  thus  to  sell,  he  is  to  add  the  sub- 
divisions together,  one  by  one,  and  offering  them  thus  unitedly; 
and  if  not  sold  in  this  manner,  then  the  whole  may  be  sold 
together,  on  a  reasonable  bid,  the  particulars  of  which  is  to  be 
reported  in  the  officer's  return.^ 

§  616.  So,  when  the  lands  are  situated  in  difierent  town- 
ships and  ranges,  or  the  tracts  arc  otherwise  disconnected,  they 
are  to  be  offered  severally  and  separately,  each  one  in  like  man- 
ner as  above — ^first  in  smaller  subdivisions  as  forties,  and  then 
in  larger  as  eighties,  and  finally  each  tract  separately  as  a 
whole,  if  not  disposed  of  in  parcels,  and  if  there  is  a  reasona- 
ble bid,  the  same  that  is  each  tract,  to  be  sold  in  a  body  in  this 
manner,  and  so  on  in  like  manner  each  tract,  until  the  sum 
required  be  raised.  The  creditor  may  insist  on  a  sale,  and  if 
sold  under  value,  the  debtor  finds  relief  in  the  redemption 
laws.  3 

§  617.  In  Minnesota  the  statutory  provision  requiring  land 
to  be  sold  in  parcels,  on  execution  sale,  is  held  to  be  merely 
directory,  and  a  sale  in  the  aggregate  being  otherwise  unobjec- 
tionable is  valid.  The  injured  party  is  left  to  his  remedy 
against  the  officer  selling.'^ 

§  618.  In  Wisconsin  the  sale  in  such  case  is  voidable  and 
may  be  set  aside  at  the  option  of  those  in  interest.  ^ 

§  619.  In  California,  a  sale  in  mass  was  holden  valid,  though 
the  general  ruling  there  is  to  the  contrary.  There  were  several 
adjoining  parcels  sold  together.     The  sheriff  and   purchaser 

'  Phelps  V.  Conovcr,  25  111.  813. 

2  Ibid. 

"  Ibid. 

*  Tillman  v.  Jackson,  1  Minn.  183. 

"  Raymond  v.  Tauli,  21  Wis.  531,  53-4;  Bunker  i.  Hand,  19  Wis.  25S 


KXKCiniOX    SALKS    OF    llllAI.   VUOVKIVVY.  223 

being  ignonint  of  the  subdivisions  at  tlio  time  of  sale,  and  tlio 
conduct  of  tlie  defendant  being  sucli  as  tended  to  mislead  the 
officers;  ho  liaving  sniTendered  the  hmd  to  the  sheriff  witliout 
informing  liim  tliere  existed  any  subdivisions,  and  the  sale  was 
made  according  to  the  description  which  he  furnished.^  But, 
quere,  if  it  would  not  be  set  aside,  if  sold  below  value,  on  the 
application  of  other  creditors,  in  case  the  debtor  has  no  other 
property  ? 

§  G20,  The  ruling  in  Indiana,  as  to  place  of  sale  by  a  United 
States  marshal],  is  that  under  the  state  statute  adopted  by  the 
federal  court,  such  sales  arc  to  be  made  in  the  county  where 
the  land  lie  which  are  sold,^  These  two  decisions  are  by  the 
respective  state  courts  of  those  states  wherein  tlie  questions 
arose  in  collateral  proceedings. 

§  621.  In  Tennessee  the  rule  is,  in  selling  lands  on  execu- 
tion, that  the  sale  be  made,  when  practicable,  in  parcels,  so  as 
not  only  to  obtain  the  required  sum  for  the  smallest  amount 
of  property,  but  also  to  the  better  enable  the  judgment  debtor 
to  redeem  when  the  price  of  each  lot  is  thus  separately  fixed. 
If  sale  be  made  in  violation  of  the  above  principles,  it  is  void- 
able, though  not  void,  and  will  be  set  aside  by  the  court  on  the 
proper  application  of  those  interested,  including  the  holders 
of  other  unsatisfied  judgments  against  the  same  judgment 
debtor.  3 

§  G22.  If  different  parcels  be  sold  e?i  masse,  the  delivery 
of  the  deed  to  the  purchaser,  on  application  of  the  execution 
debtor  may  lie  arrested  by  injunction;  but  on  terms  that  he 
pay  off  the  execution  and  costs  with  interest. ■* 

§  G23.     Sales  may  be  made  on  several  executions  at  once, 

'  Smith  V.  Randall,  G  Cal.  47.  The  court  lay  down  the  general  rule  as 
follows,  Terry,  Justice :  "As  a  general  rule  the  sales  in  mass,  of  land 
consisting  of  separate  lots  are  not  tolerated  or  countenanced  in  courts  of 
justice.  But  this  rule  should  not  he  extended  so  as  to  allow  a  dehtor,  by 
misleading  the  officer  with  a  false  description,  or  by  withholding  informa- 
tion to  invalidate  a  sale  under  execution,  made  in  good  faith,  in  the  entire 
absence  of  fraud."     (G  Cal.  51.) 

*  .Tenners  v.  Doc,  9  Ind.  461. 

'  ^T' inters  v.  Burford,  G  Coldw.  (Tenn.)  328. 

*  Ballance  v.  Loomis,  22  111.  82. 


22:1:  JL'DICI.U.    AND    EXECUTION    SALES. 

*'It  can  do  no  harm  (say  the  court)  as  the  sheriff  sells  so  nuicli 
as  will  satisfy  all."  If  the  amount  bid  fur  the  whole  is  more 
than  will  satisfy  all  the  writs,  then,  little  by  little  the  cpantity 
of  land  may  be  redeemed  by  proper  bidding.  Therefore  the 
officer  can  combine  the  writs  and  do  equal  justice  to  all  the 
parties  in  interest.  lie  can  afterward  a]3ply  the  proceeds  as 
the  law  may  recpiire.  So  if  part  of  the  sale  is  for  cash  and 
part  on  credit,  some  of  the  writs  being  on  judgments  and  some 
on  rej)Ievin  bonds,  it  only  requires  that  the  terms  and  j^ropor- 
tion  of  cash  and  credit  respectively  be  made  known  to  the 
bidders.  1 

§  624:.  In  Indiana  it  is  provided  by  statute,  that  '*'  if  the 
estate  shall  consist  of  several  lots,  tracts,  and  parcels,  each  shall 
be  offered  separately,  and  no  more  of  any  real  estate  shall  be 
offered  for  sale  than  shall  be  necessary  to  satisfy  the  execution, 
unless  the  same  shall  not  be  susceptible  of  division." 

§  G25.  The  supreme  court  of  that  state  hold  that  it  is  well 
settled  that  if  the  sheriff,  in  violation  of  such  statute,  offer  and 
sell  several  distinct  tracts  or  parcels  of  land  in  one  body,  the 
sale  is  void;  and  that  the  provisions  of  the  statute  apply  as 
well  to  sales  on  foreclosure  of  mortgages  as  to  sales  on  ordinary 
execution.  2 

§  C2C.  And  when  the  sheriff's  return  and  record  showed 
that  more  than  one  parcel  were  sold  as  an  entirety,  the  sale 
was  holden  void  in  the  hands  of  a  third  party  claiming  under 
the  execution  purchaser,  who  was  also  jDlaintiff  in  execution.  ^ 

§  627.  If  the  land  consist  of  several  tracts  or  parcels,  it  is 
the  imj^erative  duty  of  the  sheriff  (say  the  court)  under  said 
statute  to  offer  the  parcels  separately;  and  if  but  a  single  tract 
or  body,  and  is  susceptible  of  division  without  injury,  and  the 
sale  of  the  whole  is  not  required  to  satisfy  the  execution,  he  is 
to  divide  it,  and  offer  at  one  time  only  so  much  of  it  as  may 
];e  necessary  to  satisfy  the  judgment,  interest  and  costs. -^ 

'  Locke  V.  Coleman,  4  Mon.  817;  Sonthard  v.  Pope,  913  Mon.  2G3. 

2  Piol  «.  Braycr,  30  Ind.  332,  339;  Sherry  t.  Nick  of  the  Woods,  1  Ind. 
075;  Reed  v.  Diven,  7  Ind.  189;  Eauks  v.  Bales,  10  Ind.  423;  Tulcr  v.  Wil- 
kinson,  27  Ind.  450. 

2  Piel  V.  Brayer,  30  Ind.  332,  339. 

*  Piel  V.  Braycr.  30  Ind.  332. 


EXECUTION    S.VLES   OF    EEAL   I'lIOPEiriT.  225 

§  G2S,  Under  that  statute  it  is  also  held  that  to  enaljlc  the 
court  to  cany  out  its  requirements,  the  court  should,  in  mort- 
gage foreclosures  for  interests  or  installments  only,  and  other 
installments  are  not  ^-et  due,  first  ascertain  if  the  ])rop- 
erty  can  be  sold  in  parcels,  without  injury,  so  as  to  enable 
it  to  determine  on  the  proper  decree  to  render  in  the  case. 
In  case  the  whole  is  due,  then  the  proper  order  is  to  sell  the 
premises,  or  so  much  thereof  as  may  be  necessary  to  pay  the 
debt  and  costs.  ^ 

§  629.  When  judgments  arc  liens  upon  real  estate,  such 
liens  confer  no  manner  of  right  or  interest  on  the  judgment 
creditors  in  or  to  tbe  land,  but  merely  tlie  prior  right  to  make 
out  of  the  land  the  debt  secured  by  the  judgments. ^ 

§  G30.  Subject  to  this  right- of  the  creditors  the  judgment 
debtor  may  sell  and  convey  his  land.  If  sold  and  conveyed  in 
parcels  to  different  persons,  and  at  different  dates,  during  the 
life  of  the  judgment  liens  and  executions  sales  thereof  be 
■  afterwards  made  to  satisfy  such  judgments,  the  lands  are  to  be 
levied  and  sold  in  the  inverse  order  of  their  sale  and  convey- 
ance by  the  debtor.  ^  Upon  the  same  principle,  if  part  only 
of  the  lands  be  sold  by  the  judgment  debtor,  then  the  remain- 
ing part  is  the  first  to  be  sold  to  satisfy  judgment  liens.* 

§  C31.  If  a  regular  and  sufficient  deed  of  lands  be  made 
and  delivered,  but  afterwards  before  resort  thereof  be  volun- 
tarily destroyed  by  the  parties,  it  nevertheless  confers  the  legal 
title  on  the  grantee;  and  if  no  reconveyance  be  made,  then  a 
judgment  subsequently  rendered  against  the  grantee  becomes 
a  lien  on  the  land,  and  execution  sale  and  deed  thereon  will 
convey  the  title  to  the  purchaser  at  the  execution  sale.^ 

'  Piel  V.  Brayer,  30  Ind.  340;  Harris  v.  Makepeace,  13  Ind.  5G0;  Smith 
0  Piersc,  15  Ind.  210;  Benton  v.  AVood,  17  Ind.  2G0. 

«  Oilman  v.  Brown,  1  Mason,  C.  C.  221. 

3  Stuyvesant  v.  Hall,  2  Barb.  Cli.  151,  155;  Ins.  Co.  v.Milncr,  1  Barb.  Ch. 
353;  Marshall  u.  Moore,  3G  Illinois,  321 ;  Mason  ■».  Payne,  1  "Walker  Ch. 
459;  Snyder  v.  Stafford,  11  Paige,  71;  'Relfc  v.  Bibb,  43  Ala.  510. 

*  Clowes  V.  Dickinson,  5  Johns.  Ch.  235;  Clowes  v.  Dickinson,  9  Cow 
405;  Ilurd  v.  Eaton,  28  111.  122. 

»  Parshall  v.  Shirts,  54  Barb.  (N.  Y.)  99. 
15 


220  juDiaAL  AND  l:x^:cL•TIo^'  saltcs. 

§  632.  It  lias  been  Iield  that  by  the  mutual  consent  of  plain- 
tiif  and  defendant,  an  execution  sale  may  be  made  on  a  credit 
instead  of  for  cash  in  hand.  That  it  will  be  none  the  less  the 
sale  of  the  officer,  or  execution  sale,  in  its  nature  and  effect: 
and  that  therefore  the  failure  of  title  to  the  property  purchased 
at  such  sale  will  be  no  defense  to  an  action  on  a  note  given  for 
the  purchase  money.  ^ 

§  03?).  Xor  is  such  ruling  at  all  at  variance  with  the  doc 
trine  that  the  purchaser  may  recover  (in  equity)  from  th( 
execution  debtor,  on  it  transpiring  that  the  debtor  did  not  owi 
the  property  sold,  for  here  the  note  is  to  the  sheriff  or  to  plain 
tiff  in  execution. 

§  634.  If  the  notice  be  to  sell  on  one  execution  only,  and 
the  officer  has  additional  ones  against  the  same  defendant  at 
the  time  of  the  sale,  he  cannot,  without  other  notice  of  sale 
as  such  additional  executions,  state  the  additional  executions 
in  his  certificate  of  sale  or  in  his  deed.  It  is  as  to  such  other 
writs,  if  such  course  be  taken,  a  virtual  selling  without  notice. 

§  035.  The  return,  certilicate,  and  sale  should  be  based  upon 
the  writ',  under  which  the  notice  is  given;  and  the  amount 
sold  for  is  to  be  correctly  stated  therein,  so  those  entitled  to 
redeem  may  know  the  amount  to  be  paid.^  The  fund  raised 
will  then  be  subject  to  the  order  of  the  court  as  to  its  aj^plica- 
tion  on  the  several  writs. ^ 

§  036.  Though  an  officer  holding  an  execution  against  sev- 
eral co-defendants  will  be  bound,  as  in  other  cases,  to  first 
proceed  against  the  personal  property,  yet  he  is  not  compelled 
to  first  exhaust  the  personal  effects  of  each  one  of  the  defend- 
ants before  j^roceeding  to  sell  the  lands  of  either;  but  it  ie- 
his  duty  to  first  exhaust  the  personalty  of  each  one  of  sucl 
defendants,  whose  land  he  undertakes  to  levy  and  sell  before  sc 
proceeding  against  the  land.-* 

§  037.  If  the  return  and  other  evidences  of  sale  of  several 
lots  of  land  sold  on  execution  are  silent  as  to  the  manner  of 

'  Killgorc  v.  Pcdew,  1  Strobt,  18. 

*  Mascroft  v.  Van  Antwerp,  C  Cow.  334. 
'  Wiley  V.  Bridgman,  1  Head,  G8. 

*  Faris  v.  Banton,  G  J.  J.  Marsh.  235. 


EXECUTION    SAL]:S   OF   REAL    TKOrERTV,  227 

sellliif^  tlicm,  tlien  tlio  presumption  is  that  the  ofliccr  did  liis 
duty  and  sold  tlicm  several]3\i 

III.     Wjio  may  xot  1>uv. 

§  G3S.  "  No  man  can.  serve  two  masters."  lie  wlio  acts  for 
others  will  not  be  permitted  to  act  in  the  same  matter  for  him- 
self. He  -who  sells  for  others,  or  on  their  account,  cannot  buv 
for  himself.  The  two  relations  of  seller  and  buyer  cjmnot 
exist  at  one  andt  the  same  time  in  one  and  the  same  person  in 
reference  to  the  same  subject  matter.  The  j^i'luc-ijile  is  the 
same  whether  the  sale  be  made  in  jiroccedings  at  law  or  in 
equity.     Such  sales  are  void.^ 

§  G39.  It  has  been  held,  however,  that  by  consent  of  the 
execution  debtor  the  officer  selling  may  buj-.^  But  certainly 
not,  if  to  the  prejudice  of  other  creditors. 

lY.     SaiJ'IS  Iekegulak  ok  under  Irregular  Pimcess,  or 
Judgments. 

§  C-iO.  Mere  irregularities  will  not  avoid  an  execution  sale, 
liiirly  made,  to  a  loiiafide  purchaser.  To  render  it  void  there 
must  be  wanting  some  one  of  the  substantials  which  are  indis- 
pensable to  a  valid  sale.* 

'  Love  V.  Chcrrj',  24  Iowa,  210. 

-McConncll  v.  Gibson,  13  111.  128;  McLeod  c.  McCall,  3  Jones  (N.  C.) 
87 ;  IMichoud  v.  Girod,  4  How.  503 ;  Rcmick  v.  Butterfield,  11  Foster  (N.  H.) 
70;  Wormsly  p.  Wormsly,  8  "Wheat.  421;  Harris  v.  Parker,  41  Ala.  G04; 
Rice  «.  Cleghorn,  20  lud.  80;  Iladdix  v.  Haddix,  5Litt.  202:  WiLson  t. 
Troup,  2  Cow.  19G ;  Cruse  v.  Steffen,  47  111.  112,  and  ante  chap.  xi. 

^  Lazarus  o.  Bryson,  3  Bin.  54. 

*  Allen  V.  Parish,  3  Ham.  (Ohio)  187;  Hopping  v.  Burnam,  2  G.  Greene, 
39;  Jackson  v.  Rosevclt,  13  Johns.  97;  Jackson  v.  Delancy,  13  Johns.  537; 
Woodcock  V.  Bennett,  1  Cow\  711 ;  Jackson  v.  Bartlett,  8  Johns.  3G1 ;  Lan- 
des  V.  Brant.  10  How.  371 ;  Childs  v.  McChesney,  20  Iowa,  431 ;  Herrick 
c.  Graves,  IG  Wis.  157;  Simpson  v.  Simpson,  G4  N.  C.  427;  Cunningham  r. 
Felkner,  2G  Iowa,  117;  Hubbard  v.  Barnes,  29  Iowa,  239;  Durham  t. 
Ileaton,  28  111.  2G4;  Maurier  v.  Cook,  IG  Wis.  4G5;  Hinds  v.  Scott,  11  Penn. 
St.  19:  Wheat  v.  Sexton,  4  Wheat.  503;  Cavender  v.  Smith,  1  Iowa,  30G; 
Lovcl  B.  Powell,  5  Ala.  58;  Ware  v.  Cradford,  2  Ala.  G7G;  Stow«.  Steele,  45 
111.  328;  Kinney  v.  Knoeble,  47  111.  417;  Armstrong  i'.  Jackson,  1  Blackf. 
210;  Anderson  t.  Clark,  2  Swan.  (Tenn.)  15G;  Dunn  v.  ]Merri weather,  1  A. 


22$  „UDICIAL   AND   EXECUTION   SALES. 

§  04:1.  About  what  arc  the  requisites  to  a  valid  sale  on 
execution,  as  a  general  principle,  there  is  some  diversity  of 
authorities.  Some  of  the  rulings  are,  that  the  party  setting 
up  an  execution  sale  must  show  a  valid  judgment;  valid  w]-it 
of  execution;  a  levy  and  deed;  and  that  all  else,  when  these 
are  shown,  is  between  the  parties  to  the  execution  and  the 
officer  selling.^  Whilst  in  other  cases  it  is  holden  that  merely 
a  valid  judgment,  and  valid  writ  of  execution,  need  be  shown; 
and  that  if  it  does  not  appear  whether  there  was  a  levy,  and 
nothing  to  the  contrary  appears,  the  presumption  is  that  the 
officer  did  his  duty;  and,  therefore,  where  levies  are  holden  to 
be  necessary,  the  presumption  of  law  arises  that  the  officer  did 
liis  duty,  and  that  a  proper  levy  has  been  made;"  but  if  no 
levy  or  return  was  really  made,  or  notice  of  sale  given,  it  would 

K.  Marsh.  158;  Philips  v.  Coffee,  17  111.  154;  Hubbard  v.  Barnes,  29  Iowa, 
239;  Bunton  v.  Emerson,  4  G.  Greene,  397;  Williard  «.  Whipple,  40  Vt. 
219;  Butterfield  v.  Walsh,  21  Iowa,  97;  Stein  v.  Chambliss,  18  Iowa,  474. 

'  Wheat  V.  Sexton,  4  Wheat.  503;  Landes  v.  Brant,  10  How.  371 ;  Landes 
V.  Perkins,  12  Mo.  254;  Allen  v.  Parish,  3  Ham.  (Oliio)  187;  Taylor  x. 
Thompson,  5  Pet.  309;  Butterfield  v.  Walsh,  21  Iowa,  97,  101;  Slein  v. 
Chambliss,  18  Iowa,  474,  47G,  477 ;  Remington  v.  Linthicum,  14  Pet.  84; 
Sumner  v.  Moore,  2  McLean,  59 ;  Thompson  v.  Philips,  Bald.  C.  C.  243 ; 
Shepherd  v.  Rowe,  14  Wend.  GOO;  Griffith  v.  Bogart,  18  How.  158,104; 
Kinney  v.  Knoeble,  47  111.  417;  Crane  v.  Hardy,  1  Mann  (Mich.)  50. 

2  Carpenter  v.  Doe,  2  Ind.  405,  407;  Smith  v.  Hill,  22  Barb.  050;  Mercer 
w.  Doe,  G  Jnd.  80;  Webster  v.  Smith,  G  Mon.  110;  Lawrence  «.  Speed,  2 
Bibb,  401 ;  Draper  v.  Bryson,  17  Mo.  71 ;  McFadden  ?j.  Worthington,  45  111. 
302,  300;  Dunn  i\  Merri weather,  1  A.  K.  Marsh.  158;  Martin  v.  McCargo.  5 
Litt.  293;  Smith  ti.  Mormon,  1  Mon.  154;  Riggs  v.  Doole}^  17  B.  Mon.  239; 
Wilson  V.  McGee,2A.  K.  Marsh.  002;  Cox  v.  Joiner,  4  Bibb.  94;  Furguson 
T.  Miles,  3  Gilm.  358;  Cooper  v.  Gilbraitli,  3  Wash.  C.  C.  540;  Bowen  v. 
Bell,  20  Johns.  338;  Whatley  v.  Ncwsome,  10  Geo.  74.  In  Whatley  v.  New- 
some,  10  Geo.  70,  the  court  saj',  Lumpkin,  Justice:  "Where  a  party  relies 
on  sheriff's  title,  it  is  only  necessary  to  produce  the  execution,  with  the 
sale  under  it,  and  the  deed  made  in  pursuance  thereto,  and  prove  either 
title  in  the  defendant  or  possession  subsequent  to  the  rendition  of  the 
judgment."  And  3  Wash.  C.  C.  lays  down  the  rule  that  the  claimant 
under  a  sheriff's  deed  "  need  not  show  any  other  title  than  a  judgment, 
execution,  and  sheriff's  deed."  In  Cooper  v.  Galbraith,  3  Wash.  C.  C.  550. 
the  rule  is  laid  down  by  Washington,  Justice,  that  "the  purchaser  under 
an  execution,  in  an  ejectment  against  the  defendant  in  the  execution,  or 
one  claiming  under  him,  need  not  shov.-  any  other  title  than  a  judgment 
execution  and  a  sherifl's  deed." 


EXECUTION   SALES   OF   KFAL    TKOrERTY.  229 

not  affect  an  hona  Jide  j^urchaser.  Such  are  tlie  general  rulings 
on  tlie  subject,^  while  yet  another  class  of  cases  hold  that  when 
the  judgment  on  which  the  execution  issues  is  in  law  a  lien 
upon  the  land  to  be  sold,  then  no  levy  whatever  is  necessary ; 
and  that  as  a  consequence  arising  therefrom,  the  production  of 
a  valid  judgment,  execution,  and  a  sheriff's  deed  purporting 
to  have  been  made  on  a  sale  under  such  execution,  is  all  that  is 
required.- 

§  G42.  In  the  case  first  cited,  tlie  court,  Bkoxsox,  Justice, 
cite  Catlui  v.  Jackson,  8  John.  540.  But  on  reference  to  that 
case  it  is  seen  that  the  necessity  of  a  levy  was  not  therein 
involved,  and  that  a  levy  was  in  reality  made,  and  a  return 
thereof  setting  it  out  at  large.  The  real  objection  was  that 
the  officer  did  not,  on  levying,  take  corporeal  jiossession  of  the 
land  which  the  court  held  was  not  only  unnecessary,  but  was 
impracticable.  That  it  was  unlike  a  levy  on  jDcrsonal  property 
M'herein  the  possession  accompanies  the  \<i^y\  a  special  pro])- 
crty  is  vested  in  the  officer:  and  he  is  ordinarily  requested  to 
exercise  over  the  property  actual  possession  or  control.  In 
Catlin  V.  Jackson,  the  court  say  that  the  first  question  "  is  as 
to  the  effect  of  the  sheriff 's  seizure."  ''''  ''^  *  ^''  That,  "In 
several  essentials  the  effect  of  the  execution  must  be  different 
from  7\.fifa.  levied  on  personal  estate  only.  The  delivery  of 
'^Li^fifa.  gives  no  new  rights  to  the  plaintiff,  and  vests  no  new 
interests.  The  general  lien  is  created  by  the  judgment,  and 
execution  is  merely  to  give  that  lien  effect;  not  by  vesting  a 
possessory  right  to  the  land  affected  by  it  in  the  plaintiff,  but 
by  designating  it  for  conversion  into  money  by  the  operation 
of  \X\Qjifa.  and  the  act  of  the  sheriff  by  virtue  of  it.  It  is 
not  so  as  to  personal  jDroperty.  That  is  bound  from  the 
delivery  of  \hQfifa.  to  the  sheriff.  When  he  seizes  he  may 
remove  it  for  safe  keeping,  and  this  not  only  to  give  effect  to 
the  seizure,  but  for  his  own  security.  *  '"  ■^''  '"  None  of 
these  reasons  apply  to  real  estate.     It  is  not  necessary  that  tlie 

'  Draper  v.  Bryson,  17  Mo.  70;  Brooks  v.  rtoono}-,  11  Geo.  423;  Smith  t. 
Hill,  22  Barb.  G50. 

MVood  V.  Colvin,  5  Hill,  (N.  Y.)  228;  Tullis  v.  Brawlcy,  3  Minn.  277; 
Folsom  v.  Carli,  5  Minn.  333,  337. 


230  JUDICIAL   AND   EXECUTION   SALES. 

sheriff  should  possess  himself  of  it  for  safe  keeping."^  Then 
this  case,  so  far  from  involving  the  necessity  of  a  levy,  show? 
that  a  levy  "^as  really  made  on  the  land ;  that  a  return  was 
made  setting  out  the  levy  at  large;  and  that  a  vemlitloni 
exponas  then  issued,  on  "which  the  land  was  sold.  The  real 
point  was,  not  whether  a  levy  is  necessary,  but  whether  the 
levy  which  was  made  had  the  effect,  before  sale,  to  take  away 
the  debtor's  right  of  entry  on  the  land.  Tlie  coui-t  held  that 
it  did  not,  because  unlike  a  levy  of  personalty,  the  possession 
of  the  lands  is  not  by  the  levy  changed.  We  have  given  thus 
much  of  the  opinion  in  tliat  case  to  show  that  it  does  not  bear 
out  the  subsequent  ruling  in  Wood  v.  Colvin  as  to  there  being 
no  necessity  of  a  levy  when  the  judgment  is  a  lien  upon  the 
land  to  be  sold.  ISTor  does  the  case  of  Greene  v.  Burke, 
referred  to  in  Wood  v.  Colvin^  come  up  to  the  point.  This  case 
was  in  replevin  and  there  was  no  necessity  to  consider  levies 
on  land;  yet  the  learned  judge,  (Justice  Cowen)  refers  to  the 
subject,  and  intimates  an  opinion  that  such  levies  are  unneces- 
sary inasmuch  as  unlike  a  leA''y  on  personal  property,  they 
neither  satisfy  the  Judgment  to  any  extent  nor  vest  an  interest 
in  the  officer  in  the  land." 

§  643.  The  same  principle,  however,  is  fully  asserted  in 
Minnesota.  It  is  there  holden  in  as  broad  terms  as  in  Wood 
V.  Colvin,  that  in  executing  writs  of  execution  issued  on  judg- 
ments which  are  liens  upon  the  lands  to  be  sold,  no  levy  is 
necessary.  3 

§  64:4.  So,  where  in  attachment  proceedings,  there  is  a  judg- 
ment identifying  the  levy  of  the  attachment,  the  date  thereof, 
and  land  attached,  and  ordering  the  land  by  description  to  be 
sold  on  writ  of  venditioni  exjyonas,  or  on  special  execution,  then 
no  levy  of  the  writ  of  execution,  or  of  vemlitioni  exponas  is 
required.  Tlie  attachment  levy  and  order  of  sale  stand  in 
stead  of  a  subsequent  levy  of  the  execution,  and  the  sale  will 
relate  back  to  and  carry  title  from  the  date  of  the  levy  of  the 
attachment.     In  s^f^li  case  the  judgment  itself  is  sufficient,  and 

'  Colvin  V.  Wood,  5  Hill,  328. 

»  Greene  v.  Burke,  23  Wend.  490,  498. 

•  Tullis  V.  Brawley,  3  Minn.  277 :  Folsom  v.  Carli,  5  Minn.  333, 337. 


KXKCUTION    SALES    OF    EEAL   PKOrERTV.  231 

indeed  the  best  evidence  of  the  attaclinicnt  lew  and  of  the 
date  thereof,  which  are  therein  fixed  bv  judicial  finding.  The 
reason  Avhj  no  levy  is  then  recjuired  of  the  writ  of  execution 
is  that  the  original  attachment  levy  and  the  judgment  seize  the 
land,  and  the  only  office  of  the  writ  of  special  execntion,  or 
of  venditioni  exponas  is  to  bring  about  a  sale, 

§  645.  If,  however,  only  an  ordinary  judgment  be  taken, 
and  only  an  ordinary  writ  of  execution  issue,  then  a  levy  may 
be  necessary,  as  in  such  case  the  chain  of  the  attachment  lien 
is  broken  of  record;  to  fix  that  lien  in  any  future  controversy, 
(if  it  can  be  done  at  all)  the  execution  purchaser  must  rely  on 
the  writ  of  attachment  and  levy  thereof,  if  possibly  to  be  found 
in  the  files  of  office  under  the  modern  practice  wdiere  complete 
records  are  not  usually  made.  If  found,  however,  would  they 
cut  oif  the  rights  of  an  innocent  intervening  purchaser,  with- 
out knowledge,  and  who  buys  of  the  execution  debtor  between 
the  date  of  the  attachment  levy  and  the  date  of  the  judgment? 
"We  submit  that  in  such  case  a  honajide  purchaser  would  not 
be  charged  with  notice  of  the  attachment  levy  and  lien  thereof 
after  the  writ  had  served  its  functions  and  had  become  dormant 
in  the  mere  files  of  office. 

§  Q4:Q.  Although  no  interest  is  vested  in  the  officer  or  in 
the  plaintiff  by  the  le\y  of  an  execution  on  lands:  that  is,  no 
interest  in  the  property;  yet  a  lien  attaches,  if  none  existed 
before,  in  behalf  of  the  plaintiif  by  virtue  of  the  levy,  and  a 
ri^ht  in  consequence  thereof  to  make  his  debt  thereof  as  of 
priority  to  and  proceeding  of  another  subsequent  thereto. 

§  GIT.  It  is  urged,  as  we  have  seen,  tliat  because  a  levy  on 
lands,  unlike  one  on  personalty,  vests  no  property  in  the  officer, 
that  therefore  no  levy  need  be  made,  where  there  is  exccvition 
on  a  judgment  which  in  law  is  a  lien;  but  suppose  the  judg- 
ment lien  expire  before  sale,  though  after  advertisement  of 
sale,  under  such  circumstances,  what  then  becomes  of  the 
plaintiffs  lien'^  What  protection  has  he,  as  against  an  inter- 
vening hona  fide  purchase,  made  without  notice,  or  even  with 
notice  of  the  intended  sale?  It  is  well  settled  that  if  a  levy 
on  lands  be  made  during  the  execution  debtor's  lifetime  that  a 


L'.Jli  juDicLy;.  and  execution  s.vles. 

sale  may  be  made  after  liis  deatli.'^  But  liow  so  if  the  lc\-y  is 
unnecessary,  or  if  a  levy  lias  no  effect?  Although  a  levy  on 
the  realty,  unlike  one  on  personal  property,  vests  not  a  pro])- 
erty  in  the  ollicer,  yet  we  conceive  that  it  affects  sucli  a  lien 
upon  and  so  seizes  the  title  as  not  only  to  place  the  same 
beyond  the  power  of  the  debtor  to  sell  as  against  the  judgment 
lien,  but  as  also  to  give  priority  over  subsequent  levies.^ 

§  6-iS.  This  very  point  v/as  decided  in  Banh  of  Missouri 
V.  Wells^"  where  the  judgment  lien  expired  after  levy  and 
before  sale  of  the  land  by  the  sheriff.  The  court  held  that  the 
previous  levy  preserved  the  lien  of  the  judgment  until  the 
writ  was  fully  executed. 

§  649.  When  the  sale,  as  in  Wood  v.  Colvin,  is  made  upon 
a  writ  of  venditioni  exponas,  no  levy  of  that  WTit  is  necessary, 
for,  if  it  follows  a  fi.  fa.,  the  levy  has  already  been  made  by 
the  latter;  and  if  it  is  ordered  as  an  original,  then  it  describes 
the  land  that  is  therein  ordered  to  be  sold.  Such  writ,  how- 
ever, usually  follows  a  fi.  fa.  on  which  a  levy  has  been  made, 
but  no  sale;  the  vendi  then  goes  to  complete  the  work,  by 
order  of  the  court.  It  directs  the  land  previously  levied  on  to 
be  sold.  The  sale,  wdien  made,  relates  ba(;k  to  date  of  the  levy 
on  the  fi'.  fa.,  and  if  the  proper  relation  thereto  has  been  kept 
up  on  the  record  and  in  the  latter  writ,  carries  title  from  that 
date;  and  the  order  for  issuing  the  writ  of  venditioni  exponas 
shuts  out  all  collateral  inquiry  as  to  the  regularity  of  the  prior 
writ  oi  fi.  fa.  and  of  the  \qyy  and  return  thereof. ^ 

§  G50.     In  Smith  v.  IlilU  it  is  expressly  ruled  that  a  levy 

'  Whc.iton  V.  JSextou,  4  Wheat.  SO!). 

*  13  Mo.  3G1.  In  this  case  the  Supreme  Court  of  Missouri  dispose  of  the 
question  in  the  following  terms:  "  The  lien  of  the  judgment  under  which 
the  defendant  deduces  his  title  was  prior  to  that  of  the  plaintiff,  and  long 
hefore  the  expiration  of  the  prior  lien  an  execution  was  sued  out  and 
delivered  to  the  sheriff,  the  effect  of  which  was  to  continue  that  lien  until 
the  execution  of  the  writ,  although  the  time  had  elapsed  during  which 
the  lien  of  a  judgment  continued."  *  *  *  *  "Then  the  prior  levy 
of  the  executioner  under  the  junior  judgment,  although  the  lien  of  that 
had  not  expired,  did  not  divest  the  priority  of  the  older  judgment." 

'  Weir  V.  Clayton,  19  Ala.  132. 

'  23  Barb.  CoG,  GGO. 


EXECUTION  SALES  OF  KEAL  I'KOl'EiriT.  233 

is  presumed  in  law,  wlicn  an  execution  sale,  that  is  in  other 
respects  suilicnent  in  law,  is  shown.  In  that  respect  the  court 
hold  the  following  language:  "  It  is  said  there  is  no  ])roof'  of 
levy.  The  presumption  is  that  t'ho  sheriff  did  his  duty,  and 
levied  before  the  sale." 

§  651.  In  Mercer  v.  Doe^  the  court  say:  "The  levy,  sale, 
and  return  of  the  -writ  were  sufHciently  shown  by  the  sheriff's 
deed;  but  whether  the  land  was  sold  with  or  without  appraise- 
ment, does  not  appear  in  the  record.  '•'■■  '-^  *  ■^-  It  is  true 
when  the  law  requires  a  sheriff  to  appraise  property  taken  on 
execution  a  sale  without  appraisement  would  be  a  nullity;  but 
in  the  absence  of  any  proof  on  the  subject,  he  will  be  presumed 
in  that  respect  to  have  done  his  duty." 

§  052.  In  Carpenter  v.  Doe^  the  action  was  ejectment 
involvino;  title  to  land  under  a  sheriff's  sale.  The  court  held 
that  the  execution  purchaser  was  only  bound  to  show  a  judg- 
ment, execution,  sale,  and  deed.  In  that  case  the  court  lay 
down  the  rule  as  follows:  "It  is  a  general  rule  that  a  pur- 
chaser at  sheriff's  sale  is  bound  only  to  show  the  judgment  of 
a  competent  court,  an  execution  v.^arranted  by  the  judgment, 
and  a  sale  and  deed  under  it." 

§  G53.  As  to  the  showing  of  a  sale,  we  submit  that  the 
decxl  itself  is  suflicient  evidence  thereof  in  the  first  place. 

§  054:.  Allowing  the  doctrine  that  ordinarily  it  is  necessary 
only  to  show  a  judgment  execution  and  sheriff's  deed  pur- 
porting to  have  been  made  in  pursuance  of  a  sale  thereon  to 
be  the  better  ruling,  still  it  does  not  follow  that  the  ruling  in 
the  leading  case  of  Wheaton  v.  Sexton,  4  Wheat.  503,  was 
incorrect,  for  in  that  case  the  sale  was  made  after  the  death  of 
the  defendant  in  execution,  and  it  became  therefore  necessary 
to  show  a  levy  to  bring  the  case  within  the  power  of  the 
ofiicer  to  sell,  to  do  which  he  had  no  power  as  against  a  dead 
defendant,  unless  the  levy  was  made  before  the  death  occurred. 
In  cases  then  of  that  class  a  levy  becomes  importaiit  as  fixing 
the  power  of  the  officer  to  proceed.  The  want  of  it  then  is 
not  a  mere  irregularity,  but  a  c[uestion  of  power.     The  one  is 

»  Mercer  v.  Doe,  G  Ind.  80,  81 ;  Carpenter  v.  Doc,  3  Ind.  4G5. 
*  2  Ind.  405,  467. 


234:  JUDICLiL   AND   EXECUTION   SALES. 

cured  bj  presumption  of  law  when  judgment,  execution,  and 
sale  is  made;  the  other,  like  jurisdiction  in  an  inferior  court, 
is  not  inferred.  The  letter  of  the  case  of  Wheaton  v.  Sexton 
seems  to  have  been  subsequently  followed  in  some  cases 
wherein  the  sales  were  against  living  defendants,  and  which 
were  not  in  fact  within  the  spirit  or  the  reason  of  the  case  thus 
recognized  as  a  precedent  without  any  controversy  raising  the 
question  of  distinction. 

§  655.  Upon  the  whole  we  conceive  it  to  be  the  duty  of  the 
officer,  in  all  cases,  in  executing  a  writ  oi  fieri  facias^  to  levy, 
whether  the  property  be  real  or  personal;  and  that  if  the  sale 
be  subsecpient  to  the  death  of  the  execution  defendant,  a  levy 
must  not  only  be  shown,  but  must  have  been  made  prior  to 
the  defendant's  death,  or  else  the  sale  cannot,  without  more, 
be  sustained,  whatever  the  effect  might  be,  of  lapse  of  time 
coupled  with  possession.  That  in  all  other  cases  arising  under 
such  writ  oi  fieri  facias,  whilst  it  is  in  like  manner  the  duty 
of  the  officer  to  levy,  the  omission  so  to  do,  or  to  advertise  the 
sale,  or  to  make  a  return,  will  not  affect  a  hona  fide  purchaser, 
if  the  sale  be  in  all  other  resjDCcts  sufficient  and  fair,  even  if  it 
be  made  to  appear  thereafter  in  a  collateral  proceeding  that 
such  irregularities  occurred;  and  that  in  case  it  is  not  made  to 
aj^pear  either  the  one  way  or  the  other,  then  by  presumption  of 
law  the  officer  did  his  duty,  and  the  court  will  hold  that  the 
requirements  of  the  law  in  these  j^articulars  were  complied 
witli. 

§  G5G.  An  execution  issued  after  a  year  and  a  day  from  the 
rendition  of  the  judgment,  "the  time  limited"  witliin  which 
an  execution  must  issue,  and  at  the  end  of  which  the  judgment 
becomes  dormant,  is  holden  to  be  valid,  though  there  be  no 
revival  of  the  judgment.  Such  j)rocess  is  only  voidable  and 
not  void.  It  is  a  justification  until  set  aside,  and  a  sale  thereon 
in  other  respects  j^rojier  will  be  sustained  as  against  the  execu- 
tion debtor.  He  cannot  stand  by  and  suffer  the  sale  to  be  consum- 
mated and  afterwards  be  allowed  to  question  its  validity  in  a 
collateral  proceeding.'' 

'  Summers  t.  Moore,  3  McLean,  59;  Armstrong  ^^  Jackson,  1  Blackf. 
CIO;  Childs  v.  McClicsney,  20  Iowa,  431;  Willard  v.  Whipple,  40  Vt.  219. 


EXKCUTIOX    SALES   OF   KKAL   I'KOPERTV.  235 

§  657.  In  the  ease  of  Cliilds  v.  IfcChesney,  in  reference  to 
irregular  execution  sales,  the  court,  after  noticing  the  fact  that 
the  Iowa  state  raises  a  presumption  in  favor  of  regularity 
where  the  contrary  does  not  appear,  go  on  and  lay  down  the 
rule  of  law  on  general  principles,  that  a  mere  irregularity  in 
the  proceedings,  writ  or  sale,  will  not  render  the  sale  void,  and 
such  is  the  prevailing  doctrine  of  the  hooks.  In  WJieaton  v. 
Sexton,  Supreme  Court  United  States,  the  court  lay  down  the 
rule  that  "  the  purchaser  depends  on  the  judgment,  the  levy, 
and  the  deed."  "All  other  questions  are  between  the  parties 
to  the  judgment  and  the  marshall."^ 

§  658.  But  if  a  sale  be  made  in  a  manner  inhibited  by  the 
statute,  and  such  irregularity  is  made  to  appear  upon  the  lace 
of  the  i3roceedings,  under  and  by  virtue  of  which  the  purchase 
at  sheriff's  sale  makes  title  the  presumption  of  regularity  and 
that  the  officer  has  conformed  to  his  duty  is,  by  such  showing 
to  the  contrary  overcome  and  will  not  avail  the  execution  pur- 
chaser. 2     The  rule  of  caveat  em/ptor  will  then  apply. 

§  659,  But  a  clerical  error  merely  will  not  vitiate  a  sheriff's 
deed; 3  especially  when  offered  in  an  equitable  proceeding. 

§  660.  Statutes  requiring  levies  to  be  made  of  personal 
property,  before  proceeding  to  levying  real  estate,  are  ordinarly 
directory  only,  and  anon  comj^liance  therewith  will  not  render 
a  sale  of  lands  invalid.^ 

§  661.  And  the  omission  of  the  sheriff  to  inquire,  in  selling, 
if  any  one  will  pay  the  debt  and  costs  for  a  less  quantity  of 
land  than  that  covered  by  the  best  bid,  though  an  irregularity 
will  not  vitiate  the  sale.^  If  the  sale  be  on  two  executions, 
one  of  which  is  void  and  the  other  ^'alid,  the  title  of  the  pur- 

'  Childs  V.  McChesucy,  20  Iowa,  431.  Wheaton  v.  Sexton,  4  Wheat.  503 ; 
Philips  V.  Dana,  3  Scam.  558;  Wood  ■».  Colvin,  5  Hill,  231;  Jackson  v. 
Rosevelt,  13  Johns.  97;  Cavender  v.  Smith,  1  Iowa,  300;  Cox  v.  Joiner,  4 
Bibb,  94;  Averill  v.  Wilson,  4  Barb.  ISO. 

^Tiel  «.  Brayer,  30  Ind.  332 ;  and  sec  Stewart  «.  Houston,  25  Ark.  311, 
as  bearing  on  the  same  principle. 

»  Stow  v.  Steel,  45  111.  828. 

^  Cavender  v.  Smith,  1  Iowa,  30G ;  Ilaydon  v.  Dunlap,  3  Bibb,  21G ;  Bceler 
V.  Bullett,  3  Marsh.  281. 

«■  Floyd  V.  ISIcKinncy,  10  B.  Mon.  89. 


23G  JUDICI^lL  AND   EXJ^CFnON   SALES. 

cliascr  will  Lc  sustained. ^     The  contrary  is  liolden  in  Indiana.^ 

§  602.  A  sale,  on  an  alias  writ,  when  the  process  should  be 
a  venditioni  exponas  is  not  void.-'"'  Nor  will  a  variance  in  the 
amount  sold  for  and  the  amount  named  in  the  deed  avoid  the 
title.'^ 

§  663.  Where  a  judgment  bore  date  on  the  12th  day  of  the 
month  and  the  execution  described  the  judgment  as  rendered 
on  the  13tli  day  of  the  month,  and  a  sale  was  made  under  the 
execution  by  the  sheriff,  it  was  holden  that  such  discrepancy 
did  not  avoid,  the  sale.^ 

§  Q'o4c.  Upon  the  principle  that  in  law  the  whole  term  of  the 
court  is  as  one  day,  the  exact  date  of  the  judgment  may  well 
be  immaterial  if  the  term  is  sufficiently  apparent, 

§  065.  Kor  will  the  variance  of  a  small  sum  between  the 
real  amount  of  the  judgment  and  the  amount  stated  in  the 
execution  render  a  sale  void  if  the  execution  otherwise  identifies 
the  judgment. ° 

§  Q(jQ.  The  irregularity  of  selling  lauds  situate  in  a  county 
other  than  the  one  from  which  the  execution  emanates,  without 
first  filing  a  transcript  of  the  judgment  in  the  county  where 
the  lands  are,  as  required  by  statute,  will  not  avoid  the  execu- 
tion sale  as  between  the  execution  debtor  and  purcliaser  who 
buys  with  notice.  The  object  of  the  statute  is  to  imjjart  notice 
of  the  sale  and  to  afford  the  judgment  creditor  the  means  of 
making  his  judgment  a  lien.  But  the  statute  is  merely  direc- 
tory, and  therefore  a  levy  before  the  debtor  has  sold  away  the 
land  mves  the  lien  and  a  sale  thereon  o-ivcs  title  as  airainst  all 
persons  buying  with  actual  notice  of  the  sales.  Where  actual 
notice  exists,  the  implied  notice  from  the  record  contemplated 
by  the  statute  becomes  unnecessary.  Its  necessity  is  sujier- 
ceded."" 

>  Herrick  r,  Graves,  IG  Wis.  157. 
"  Brown  v.  IMcKay,  IG  Ind.  484. 

'  Stein  V.  Cliambless,  18  Iowa,  474;  Simpson  v.  Simpson,  C4N.  C.  427. 
''  Ilerrick  v.  Graves,  IG  Wis.  157. 
s  Stewart  v.  Severance,  43  Mo.  323. 
*  Cunningham  v.  Felkner,  2G  Iowa,  117. 

'  Hubbard  v.  Barnes,  29  Iowa,  239 ;  and  Chap,  xviii.  Collateral  Impeach- 
ment.   Revision  of  Iowa,  Sees.  0248,  3249,  4105,  4107. 


KXECUTION   SALES   OF   KEAL    rKOrERTT.  237 

Sales  jlvde  alter  the  Deatu  of  the  Execuitok  DEI•T•:^•I)A^■T. 

§  GOT.  At  common  law  no  execution  conld  legally  issue  on 
a  judgment  after  tlie  deatli  of  either  of  the  parties,  iDlaintift" 
or  defendant,  until  the  judgment  was,  by  scire  facias  revived 
in  favor  of  or  against  the  administrator  or  executor  of  the 
deceased  party,  plaintiff  or  defendant,  as  the  case  might  be, 
except  where  otherwise  provided  by  statute.  Such  is  the  general 
law  yet  of  the  several  states  where  the  common  law  prevails. 
But  as  to  the  eftect  of  execution  and  sale  thereon  where  the 
execution  thus  issued  without  revival,  after  the  death  of  a 
party,  there  is  a  difference  of  opinion.  In  some  of  the  states 
they  are  holden  to  be  absolutely  void,  in  others  only  voidable. ^ 
The  weight  of  authority  is  that  they  are  void. 2  Yet  each  of 
the  different  rulings  arc  paramount  authority  in  the  respective 
states  wherein  they  arc  made.  In  some  of  the  states  the 
practice  of  revival  still  exists;  in  others  statutory  innovations 

^  Doe  V.  Hamilton,  23  Miss.  49G;  Butler  v.  Ilayncs,  3  N.  II.  21;  Spoer  v. 
Sample,  4  Watt'^,  307 ;  Lucas  v.  Doc,  4  Ala.  G79 ;  Abbcrcrombe  v.  Hall,  G  Ala. 
057  ;  Woodcock  -y.  Bennett,  1  Cow.  711. 

2  Stymcts  V.  Brooks,  10  Wend.  207;  Hildretli  v.  Thompson,  IG  Mass.  191; 
Massie  v.  Long,  2  Ham.  287;  State  v.  Pool,  G  Ired,  288;  Gwyn  v.  Latimar, 
4  Ycr.  22;  Abbcrcrombic  v.  Hall,  G  Ala.  657;  Webber  v.  Keunj',  1  A.  K. 
Marshall,  345;  The  State  «.  Michaels,  8  Blackf.  43G;  Erwin  •».  Dundas, 
4  How.  58;  Brown  v.  Parker,  15  Illinois,  307.  Speaking  of  common  law 
proceedings,  in  Brown  v.  Parker,  the  court  say,  the  weight  of  authority  is 
that  "  proceedings  upon  an  execution  sued  out  after  the  death  of  one  of  the 
parties  without  first  reviving  the  judgment  for  or  against  the  proper 
representative,  are  absolutely  void,  whether  their  validity  be  drawn  in 
question  directly  or  collaterally."  That  "judicial  proceedings  cannot  be 
carried  on  in  the  name  of  a  dead  man.  There  is  as  much  necessity  for  a 
plaintiff  as  a  defendant.  The  proceedings  in  cither  case  are  as  much 
arrested  by  the  death  of  one  as  of  the  other."  (Brown  v.  Parker,  15  111.  p. 
310.)  In  Erwin's  Lessee  v.  Dundas,  the  Supreme  Court  of  the  L'nited 
States  sum  up  the  law  of  this  subject  in  the  following  terms:  "  Upon  the 
whole,  without  pursuing  the  examination  further,  we  are  satisfied  that, 
according  to  the  settled  principles  of  the  common  law,  and  which  are 
founded  upon  the  most  cogent  and  satisfactory  grounds,  the  execution 
having  issued  and  bearing  teste  in  this  case  after  death  of  one  of  the 
defendants,  the  execution  was  irregular  and  void,  and  tlie  sale  and  con- 
veyance of  the  real  estate  of  the  deceased  under  it  to  the  plaintiff  was  a 
nullity." 


238  JUDiaAL   AXD   EXECUTION    SALES. 

have  been  made.  Again,  "wliere  innovations  arc  made,  the 
practice  of  revival,  and  tlic  statutory  remedy,  arc  sometimes, 
if  not  always  concm-rent,  so  that  either  may  be  pursued,  and 
omission  to  pursue  one  or  the  other  will  result  in  the  same 
consequences,  to  an  execution  and  proceedings  thereon  without, 
as  if  sued  out  at  common  law  without  revival.  All  will  be 
void  or  voidable  according  to  the  rulings  above  referred  to  in 
the  different  states. 

§  068.  By  statute,  in  Illinois,  execution  may  issue  after  the 
death  of  the  judgment  debtor  against  the  lands  and  tenements 
of  the  decedent  without  first  reviving  the  judgment  against 
the  administrator  or  heirs,  provided  the  plaintiff  first  give  the 
executor  or  administrator  of  such  deceased  debtor  three  months' 
notice  in  writing  of  the  existence  of  such  judgment.  If  execu- 
tion issue  and  sale  be  made  without  first  giving  such  notice, 
it  is  holden  that  the  purchaser  at  such  sale  takes  nothing,  and 
the  sale  is  void,  so  that  no  title  passes  under  the  deed  of  the 
sherift'.  And  if  a  notice  be  given,  but  describing  the  date  of 
the  judgment  as  of  a  different  year  than  tlie  date  of  the  one  on 
which  execution  really  issues,  the  result  will  be  no  better;  if 
sale  be  made  no  title  will  pass  by  the  deed,i  although  it  may 
have  been  intended  to  give  notice  of  the  judgment  on  which 
the  writ  reaEy  issued,  as  was  probably  the  intention  in  the  case 
above  cited.  And  a  sale  made  on  execution  issued  on  a  dor- 
mant judgment,  after  the  death  of  the  judgment  debtor,  and 
without  revival  by  scire  facias,  is  void,  and  wall  not  conier  fyiy 
rights  as  ao-ainst  the  heir. 

§  G60.  The  statute  of  Illinois  allowing  writs  of  execution  to 
issue  on  judgments  after  the  death  of  the  judgment  debtor, 
does  not  authorize  their  issuance  on  dormant  judgments. 

§  670.  "When  judgment  liens  have  become  dormant  by  run- 
ning seven  years,  they  must  then  be  revived  by  scire  facias 
before  execution  can  legally  issue.  JSTor,  under  said  statute, 
can  execution  issue  in  a  like  case,  or  even  if  the  judgment  be 
not  dormant,  after  the  death  of  the  plaintiff,  without  the 
appointment  of  an  administrator  of  such  plaintiff,  and  record- 

'  Picket  V.  Ilartsock,  15  111.  279. 


KXKCUTION    SALl!>!   OF    IIKAL    I'lWI'EllTY.  231) 

ing  the  appointment  in  tlie  court  -wlicrc  the  judgment  is.  And 
in  either  ease,  if  tlic  lien  has  expired  by  the  intervention  of 
seven  years,  from  tlio  date  of  the  judgment,  then,  although 
execution  has  been  issued  M'ithin  a  year  and.  a  day,  the  judg- 
ment must  be  revived  from  its  dormant  state  before  execution 
can  legally  go.^ 

§  671.  If  the  judgment  plaintiff  die  before  execution  issues, 
then,  by  the  statute  of  Illinois,  the  personal  representative  of 
the  decedent  may  have  execution  in  his  own  name,  by  record- 
ing in  the  court  where  the  judgment  is  the  letters  of  adminis- 
tration or  testamentary  of  such  personal  representative,  (or 
may  revive  the  judgment  in  his  own  favor  by  scire  facias,  and 
thus  have  execution;)  but  if,  on  the  death  of  the  plaintiff,  the 
executor  or  administrator  take  out  execution  without  so  record- 
ing his  letters  in  the  court  wdiere  the  judgment  exists,  or  first 
making  himself  a  party  to  the  judgment,  such  execution,  if 
neither  the  one  or  other  of  these  previous  steps  be  taken,  will 
be  void,  and  all  the  proceedings  and  any  sale  under  it  wil! 
likewise  be  void,  and  no  rights  will  inure  therefrom, ^ 

§  GT2.  Eut  in  case  the  execution  issue  and  be  levied  during 
the  lifetime  of  the  parties,  then  the  officer  in  charge  thereof 
may  proceed  to  sell  notwitstanding  the  death  of  a  party,  and 
it  will,  at  most,  amount  merely  to  an  irregularity,  but  will  not 
render  the  sale  invalid.  ^ 

§  673.  And  though,  by  statute,  in  Iowa,  the  presumption  is 
in  favor  of  sheriff's  sales,  by  reason  whereof  the  silence  of  the 
sheriff's  deed  as  to  whether  the  sale  was  made  on  an  alias  ji. 
fa.,  or  on  a  venditioni  exponas,  would  be  presumed  to  have 
been  made  on  the  latter;  yet  the  Iowa  courts  hold  that  on  gen- 

'  Scammon  v.  Swartwout,  2.5  111.  C2G.  If  llic  jiulgment  debtor  be  dead, 
the  scire  facias  must  make  the  heirs  a  party  and  give  tbcm  a  day  in  court, 
after  the  lien  has  expired,  as  the  title  lias  then  vested  in  them,  lb.,  and 
Turney  v.  Young,  22  III.  253. 

""  Brown  v.  Parker,  15  111.  307. 

3  Sumner  v.  Moore,  2  McLean,  59;  Wolf  v.  Heath,  7  Blackf.  154;  Sprott 
V.  Reid,  3  G.  Greene,  489 ;  Speer  v.  Semple,  4  Watts,  3G7 ;  Butler  v.  Ilaynes, 
3  N.  II.  21 ;  Butterfiekl  v.  Walsh,  21  Iowa,  97;  Gamble  r.  Woods,  53  Pcnn. 
St.  158,  IGO;  Whcaton  v.  Sexton,  4  Wheat.  503. 


24:0  JUDICIAL    A^'D    KXKCUTIOxN'    SALKS. 

cr:il  principles  an  irregnlarity  in  selling  on  alias  instead  of  on 
a  venditioni  exponas,  will  not  vitiate  the  sale.^ 

§  GT4.  And  where  a  levy  of  a  ji.  fa.  is  made  during  the 
life  of  the  execution  defendant,  the  Supreme  Conrt  of  the 
United  States  have  holden  that  writ  of  venditioni  exponas 
may  issue  after  defendant's  death,  to  complete  the  salc.^ 

§  675.  And  so,  where  sale  on  execution  nnder  the  valuation 
law  fails  for  want  of  a  bid  to  the  amonnt  by  law  required,  and 
the  execution,  after  \eYj  and  such  effort  and  failure  to  sell,  is 
returned,  if  in  the  meantime  the  defendant  in  execution  dies, 
a  writ  of  venditioni  exponas  may  legally  issue  without  revival 
by  scire  facias,  notwithstanding  the  death  of  the  defendant, 
and  a  sale  tliereon  will  be  legal  and  valid.  Such  sale  will  con- 
fer on  the  purchaser  the  same  rights  in  reference  to  the  date 
of  the  lien  as  if  it  were  made  on  the  original  writ  and  levy.^ 

YI.     Sales  wuex  tiiekk  is  a  Yaluation  Law. 

§  GTG.  As  respects  valuation  of  the  property,  execution  is 
to  be  made  in  accordance  with  the  law  in  force  at  the  date 
of  the  contract  on  which  the  judgment  is  rendered;  and  if  the 
contract  be  made  under  a  valuation  law,  then  the  sale  on 
execution  should  conform  to  its  provisions,  although  the  law 
be  repealed,  before  execution,  or  even  before  judgment.'^ 

§  677.  In  such  case  no  bid,  when  the  property  has  been 
appraised,  should  be  received  of  a  less  sum  than  the  relative 
amount  of  the  appraised  value  required  by  the  statute;  and  a 

'  Cliilds  V.  McChcsnej',  20  Iowa,  431;  Butterfield  v.  Walsh,  21  Iowa,  97. 

'  Taylor  v.  Miller,  13  How.  287;  Bleekcr  v.  Bond,  4  "VVaih.  C.  C.  G. 

^  Taylor  v.  Miller,  13  IIow.  287.  This  was  a  case  broiip.ht  np  frora  Mis- 
.sissippi,  where  the  doctrine  prevails  in  the  state  courts  that  such  a  sale  is 
not  absolutely  void,  but  is  only  voidable  in  some  direct  proceeding,  can- 
not be  assailed  successfully  in  a  collateral  proceedin.;^.  Smith  &  IMont- 
gomory  v.  Winston,  2  How.  (Miss.)  601;  Drake  v.  Collins,  5  IIow.  (Miss.) 
253;  Harrington  v.  O'Riley,  9  S.  &  IM.  216. 

■»  Bcw  V.  Wood,  3  McLean,  575;  Coviell  v.  Ham,  4  G.  Greene,  455;  Bur- 
ton  «.  Emerson,  4  G.  Greene,  393;  McCracken  v.  Haywood,  2  IIow,  G08; 
Hobson  V.  Doe,  4  Blackf.  487;  Lane  ^.  Fox,  8  Blackf.  58;  Harrison  v.  Siipp, 
8  Blackf.  455;  Law  v.  Smith,  4  Ind.  56;  Tcvis  ?;.  Doc,  3  Ind.  129;  Kenzie  v. 
Bronson,  1  IIow.  311 ;  Ilawley  v.  Hooker,  21  Ind.  144;  McCracken  v.  Hay- 
ward,  2  IIow.  813;  Collier  r.  Stonbaugh,  6  How.  21. 


EXECUTION   SALES   OF    KEAL    rr.OPEUTY.  24:1 

sale  for  a  less  sum  is  void.i  To  make  a  valid  appraisement  all 
tlie  appraisers  must  ordinarily  agree.- 

§  67S.  And  so,  in  Iowa,  it  is  iield  in  like  manner  tluit  an 
execution  plaintiff  buying  in  satisfaction  of  liis  own  writ,  at 
sheriff's  sale  made  without  appraisement,  is  chargeable  with 
notice  of  the  irregularity  and  takes  nothing  by  his  purchase. 
So  likewise  if  the  assignee  of  the  judgment  buy  nnder  like 
circumstances.  The  court  decline  to  say  what  the  effect  in 
Iowa  would  be  if  the  ])urchase  was  by  a  third  party,  as  the 
question  did  not  arise  in  the  case  before  them;  but  held  the 
purchase  by  the  beneficiary  of  the  writ  as  void.^ 

§  079.  So  in  Sj)roU  v.  Held,  and  other  cases,  in  Iowa,  it 
had  been  previously  held  that  whoever  were  the  purchasers, 
such  sales,  without  valuation,  were  void;  that  the  want  of 
valuation  went  to  the  power  of  the  officer.'^ 

§  GSO.  As  to  the  result  of  execution  sales  made  in  disregard 
of  a  valuation  or  appraisement  laAV,  the  authorities  are  by  no 
means  uniform,  some  holding  that  such  sales  are  void,^  whilst 
by  others,  though  regarded  as  irregular,  i\\Qj  are  held  to  jjass 
the  title  to  the  purchaser,  as  only  voidable  and  as  not  opcii  to 
collateral  inquiry.*' 

§  681.  We  regard  that  as  the  true  rule  v.diich  is  laid  doAni 
in  a  parallel  case,  Gantleifs  Lessee  v.  Eiolng,"  by  the  Supreme 
Court  of  the  United  States,  that  if  the  law  be  merely  directory 
as  to  the  duty  of  the  officer,  then  the  sale  and  deed,  witliout 
appraisement,  will  carry  the  title;  but  if  the  law  contains  an 
inhibition  to  sell  without  conforming  to  its  requirements,  then 
sales  in  disregard  thereof  are  void.     A  sale  on  execution  to 

'  Harrison  v.  Tlapp,  2  Blackf.  1 ;  Tyler  v.  Wilkinson,  27  Ind.  430. 

-  Evans  v.  Landon,  1  Gilm.  307. 

»  Maples  V.  Nelson,  31  Iowa,  322;  Sprott  v.  Reid,  3  G.  Greene,  497. 

*  Sprott  V.  Keid,  3  G.  Greene,  497 ;  Coriell  v.  Ham,  4  G.  Greene,  455 ;  Bur- 
Ion  V.  Emerson,  4  G.  Greene,  393. 

^  Doe  V.  Ilolman,  1  Smith  (Ind.)  58;  Evans  v.  Ashley,  22  lud.  15;  Tyler 
f.  Wilkinson,  27  Ind.  450. 

«  Shafer  v.  Bolandcr,  4  G.  Greene,  201;  Butterfield  i\  Walsh,  21  Iowa,  101. 

'  3  Uow.  707,  71G,  717. 


242  JUDiaAL   AND    EXECUTION    SALES. 

satisfy  pecuniary  fines  due  to  tlic  state  arc  not  subject  to  valua- 
tion laws  J 

§  GS2.  An  appraisement  law  in  force  in  a  state  at  tlic  time 
of  making  a  contract  in  sueli  state,  enters  into  and  becomes  a 
part  of  the  contract,  and  execution  sale  tliereon  in  sncli  state 
must  be  in  conformity  thereto.^  But  in  case  of  a  contract 
made  in  a  state  other  than  that  wherein  the  judgment  is  ren- 
dered thereon,  then  the  sale  is  not  to  be  in  conformity  to  the 
appraisement  law  of  the  state  where  the  contract  was  made, 
but  in  accordance  with  the  law  of  the  state  where  the  judg- 
ment is  rendered,  as  it  exists  at  the  date  of  the  judgment.^ 

§  683.  If  one  becomes  replevin  bail  for  another,  in  a  judg- 
ment when  and  wdiere  there  is  no  law  requiring  appraisement 
of  property  to  be  sold  under  such  judgment,  and  the  debt  is 
realized  out  of  the  bail,  then  no  appraisement  is  necessary  in 
selling  the  land  of  the  j^rincipal  on  execution  in  favor  of  the 
bail  to  reimburse  to  the  bail  the  amount  paid  by  him  if  the 
sale  be  in  the  same  state.* 

§  084.  If  judgment  be  rendered  as  an  entirety  on  debts 
due  by  two  distinct  notes,  one  of  which  was  executed  under  a 
valuation  or  appraisement  law,  and  the  other  not,  and  land  of 
the  judgment  debtor  be  sold  without  appraisement,  and  without 
the  debtor's  consent,  upon  a  general  execution  issued  on  such 
judgment,  and  a  conveyance  be  made  accordingly,  it  is  held  ii\ 
Indiana  that  the  grantee  of  the  sheriff  takes  no  title. ^ 

§  685.  The  mere  omission  of  the  sheriff  in  his  return  to 
show  that  the  property  was  appraised  is  not  conclusive;  that 
fact  is  open  to  proof  aliunde:^  moreover  valuation  will  bo 
presumed  if  nothing  appears  in  regard  to  it." 

§  686.     Wliere  it  does  not  appear  under  what  law  the  con- 

'  Walslic  V.  Kingor,  3  Oliio,  327. 

"  Law  V.  Smith,  4  Ind.  50;  Doe  v.  Collins,  1  Smith,  (lud.)  GS. 

'  Hutchins  V.  Barnett,  19  Ind.  15 ;  Doc  v.  Collins,  1  Carter,  (Ind.)  24;  Doc 
t.  Collins,  1  Smith,  (Ind.)  58;  Shaflcr  v.  Bolandcr,  4  G.  Greene,  201 ;  Stoiy, 
Conf.  of  Laws,  Sec.  550. 

*  Tevis  V.  Doc,  3  Ind.  129. 

'  Babcock  v.  Doe,  8  Ind.  110. 

«  Thurston  v.  Barnes,  10  Ind.  289. 

'  Evans  v.  Asliby,  23  Ind.  15. 


EXECUTION   SAJJ:S   OF   KI:AL   I'KOrERTV.  243 

tract  ^vas  made  on  wliieh  tlie  judgment  is  rendered,  then  the 
appraisement  law  in  force  at  time  and  place  of  the  rendition 
(»f  the  judgment  must  control.  ^ 

§  GST.  In  Indiana  a  valid  levy  of  an  attachment  upon 
real  estate  is  a  lien  from  the  date  of  the  lev}'-,  both  in  its  own 
behalf  and  in  behalf  of  other  creditors  subsequently  attaching 
and  thus  come  in  to  participate  in  the  proceeds.  Such  lien 
overreaches  the  lien  of  judgments  of  subsequent  date,  rendered 
in  proceedings  instituted  on  ordinary  process  of  summons. 

§  GSS.  When  such  attachments  are  prosecuted  to  judgment, 
and  scA-eral  executions  issue  thereon,  some  of  which  are  subject 
to  the  valuation  law  and  others  not,  and  none  of  them  have 
priority  of  another,  then  as  the  sale  must  necessarily  be  made 
on  all  the  writs  together,  it  may  be  made  without  valuation, 
and  will,  when  so  made,  be  valid. - 

§  6S9.  When,  under  the  valuation  law,  a  sale  of  real  estate 
on  execution  fails  for  want  of  a  bid,  to  the  amount  required  on 
valuation  by  the  statute,  by  reason  whereof  the  writ  is  returned 
on  a  venditioni  expo7ias  issues  and  sale  is  made  thereon,  such 
sale  relates  back  to  the  original  levy  and  is  but  a  continuation 
of  the  i^roceedings  on  the  original  writ.  It  saves  the  lien  as  an 
alias  Avould  have  saved  it  and  is  a  valid  sale. 

§  GOO.  If,  in  the  meantime,  the  defendant  die  between  the 
time  of  the  levy  of  the  fieri  facias  and  the  issuing  of  the  writ 
ot  venditioni  exponas^  the  latter  may  legally  issue,  notwith- 
standing his  death,  and  a  sale  thereon  is  valid,  and  carries  with 
it  all  the  rights  as  to  lien  acquired  by  the  original  levy  of  the 
fieri  facias  or  by  the  judgment.  ISTo  revival  h^  fieri  facias  is 
necessary.  ^ 

§  G91.  And  where  in  Indiana,  the  execution  debtor  assented 
to  a  sale  being  made  in  disregard  of  the  valuation  law,  upon 
a  M'rit  of  execution  which  came  within  the   terms  of  the  law, 

'  Indiana  \\.  Way  Co.  v.  Bradley,  15  Ind.  23;  where  by  statute  the  rents 
and  profits  are  first  required  to  be  appraised  and  offered,  a  sale  in  disre- 
gard thereof  is  void;  ib.  and  Davis  v.  Campbell,  12  Ind.  192. 

-  Shirk  V.  Wilson  13  Ind.  129. 

-Tajdor  «.  ]Miller,  13  How.  287.  This  case  came  up  from  Mississippi. 
where  it  is  holden  as  has  been  seen,  tliat  in  case  of  levy  before  a  defend- 
ant's death,  sale  thereafter  may  be  made  without  reviewing  the  judgment. 


244  JUDICTAL   AND    EXECUTION    SALES. 

and  wliicli  required  valuation  of  tlie  property  about  to  bo  sold, 
the  courts  of  that  state  held  that  such  defendant  "  could  not  be 
lieard  to  say  that  the  sale  was  void  for  want  of  appraisement." 
In  such  case  tlie  court  say:  "Tlie  maxim,  'that  to  which  a 
person  assents  is  not  esteemed  in  law  to  be  an  injury'  is  appli- 
cable here."  The  sale  thus  made  by  consent,  without  tlic 
property  bein^  appraised,  was  sustained  by  the  court,  as  to 
that  particular  point  as  valid  and  good  in  law.^ 

§  692.  The  disqualification  of  3nc  of  the  appraisers  of  lands 
about  to  be  sold  on  execution,  as  that  he  is  not  a  householder, 
where  tlie  statute  requires  holders  as  appraisers,  does  not  iu 
Iowa  avoid  an  execution  sale.^  Though  the  contrary  is  the 
ruling  in  some  others  of  the  states.  ^ 

§  693.  In  Iowa  the  policy  of  the  law  is  to  uphold  and  main- 
tain execution  sales;  and  the  statute  of  Iowa  does  not  require 
the  qualiiication  of  appraisers  to  be  embodied  or  shown  in  the 
sheriff's  return.  These,  the  court  say,  "  rest  in  pais.''^  And  if 
the  validity  of  a  sheriff's  sale  is  made  to  depend  upon  the 
([ualification  and  selection  of  the  appraisers,  the  purchaser  holds 
Ills  title  continually  at  the  hazard  of  having  it  defeated  by 
parole  testimony. ^ 

§  694.  By  act  of  Congress  of  March  the  second,  1793,  it 
was  enacted  that  wherever  by  the  laws  of  any  state  it  was  then 
required  that  goods  taken  in  execution  should  be  appraised,  so 
in  like  manner  there  should  be  an  appraisement  when  taken 
in  execution  on  executions  from  the  United  States  courts; 
and  that  in  case  the  appraisers,  on  being  summoned  by  the 
marshal,  fail  to  attend,  then  the  marshal  should  sell  without 
appraisement. s  This  provision  was  in  effect  extended  to  all 
the  states  then  in  existence,  by  the  act  of  May  ]9tli,  1S2S, 
which  latter  act  gave  the  United  States  courts  power  to  adopt, 
from  time  to  time,  the  forms  and  process  of  the  several  states 
wherein  they  were  holden,  and  this  act  was  extended  to  all  the 

'  Stockwcll  e.  Byrne,  23  Ind.  G. 

•^  Hill  v.  Baker,  31  Iowa,  302. 

=  Eddy  V.  Kuapp,  2  Mass.  154;  Wlilluian  x.  Tyler,  8  Mass.  284. 

"  Hill  V.  Baker,  31  Iowa,  302,  30G. 

=•  Brigbtley's  Digest,  208.  Sec.  2. 


EXECUTION    SALES    OF   KEAL    rROPEKTV.  245 

states  tlicn  in  existence  by  act  of  Congress  of  tlic  first  of 
August,  1S42.1  So  that  wlierever  the  state  processes  have 
been  adopted  by  sucli  acts,  or  subsequent  acts  of  Congress,  or 
by  orders  of  court  made  in  pursuance  thereof,  the  appraisement 
laws  of  the  sevci'al  states  in  force  at  snch adoption  are  applica- 
ble to  process  iVom  the  United  States  courts. 
,  §  095,  The  state  law  of  the  former  is  the  law  and  guide  of 
the  United  States  courts  in  the  several  states  in  ascertaining 
the  ri.o-hts  of  litiira-nts  in  the  subject  matter  of  litigation  before 
them  up  to  the  tin^e  of  judgment;  but  not  the  law  of  practice 
and  process  before  or  after  judgment  unless  adopted  by  act  of 
Congress  or  by  some  order  or  rule  of  court. 

§  690.  The  remedy  after  judgment  as  to  proceedings  on 
execution  conforms  to  the  state  laws  in  similar  cases,  if  such 
laws  are  adopted,  and  not  otherwise.^  But  it  is  liolden  that 
the  adoption  of  the  jjrocess  and  "proceedings  thereupon,"  is 
also  an  adoption  of  the  incidents  attached  thereto,  as  to  valu- 
ation and  exemption  laws;  provided  they  be  not  unconstitu- 
tional, whether  the  law  of  such  incidents  be  exj)ressly  adopted 
or  not.-" 

§  697.  In  Amis  v.  Smith, ^  the  United  States  Supreme 
Court,  McKiNLEY,  Justice,  hold  the  following  language:  "  We 
think  this  section  of  the  act  of  1S2S  (referring  to  the  third 
section)  adopted  the  forthcoming  bond  in  Mississippi  as  a  part 
of  the  Unal  process  of  that  state  at  the  passage  of  the  act.  And 
we  understand  by  the  phrase  'final  process'  all  the  vmts  of 
execution  then  in  use  in  the  state  courts  of  Mississippi  which 
were  properly  applicable  to  the  courts  of  the  United  States; 
and  we  understand  the  ]")hrase  '  the  proceedings  thereupon,'  to 
mean  the  exercise  of  all  the  duties  of  the  ministerial  officers 
of  the  state,  prescribed  by  the  la\vs  of  the  state,  for  the  pur- 
pose of  obtaining  the  fruits  of  judgments.     And  among  these 

'  Brightlcy's  Digest,  2G9,  Sec.  G;  Catlierwood  v.  Giipctc,  2  Curt.  C.  C.  94; 
U.  S.  V.  Knight,  14  Pet.  301. 

"  Wayman  u.  Southard,  10  Wheat.  1 ;  U.  S.  Banlc  v.  ITalsteaa,  10  Wheat. 
51 ;  Amis  v.  Smith,  IG  Pet.  309,  313. 

'United  States  v.  Knight,  14 Pet.  301,  S.  C,  3  Sumner,  358;  Amis  t. 
Smith,  IG  Pet.  309,  313;  Wayman  v.  Southard,  10  Wheat.  1. 

'  Amis  y.  Smith,  IG  Pet.  309,  313. 


24G  JUDICIAL   A>T3    EXECUTION    SALES. 

duties  is  to  be  found  one  prescribed  to  the  slieriff  directing 
liim  to  restore  personal  property  levied  on  by  liim  to  the 
deiendant,  upon  his  executing  a  forthcoming  bond,  accoi'ding 
to  law,  and  the  further  duty  to  return  it  to  the  court  forfeited, 
if  the  defendant  fail  to  deliver  the  property  on  the  day  of 
sale,  according  to  the  condition  of  the  bond.  These  are  cer- 
tainly proceedings  n^^on  an  execution,  and,  therefore,  the  forth- 
coming bond  must  be  regarded  as  part  of  the  linal  process." 
So  likewise  j^roceedings  under  appraisement  laws  and  laws 
exempting  certain  property  from  sale,  when  adopted,  present 
parallel  cases  with  the  above. 

V"II.    Sali:s  at  which  the  Execution  Ci:editok  is  Purchaser. 

§  COS.  In  some  of  tlie  states  it  is  held  that  when  the-execn- 
tion  plaintiif  is  the  purchaser,  he  is  chargeable  with  all  irregu- 
larities and  omissions,  and  with  full  notice  of  all  tilings  mili- 
tating against  the  validity  of  the  sale.  In  contemplation  of 
law  he  is  not,  where  there  are  irregularities,  a  hona  fide  pur- 
chaser. He  pays  nothing, ^  If  the  sale  be  not  valid  he  may 
be  reinstated  to  his  rights  on  his  judgment.  In  the  case  cited 
from  2  Ind.  the  irregularity  was  the  selling  without  obtaining 
half  the  appraised  value  required  by  the  appraisement  law. 
How  far  this  irregularity  would  have  effected  a  stranger  buy- 
ing at  the  sale,  the  court  say  they  pass  over  as  not  within  the 
case;  but  hold  the  purchase  of  the  execution  creditor  void  for 
such  cause  in  an  action  at  law. 

§  691).  By  statute,  in  Indiana,  if  the  execution  creditor  is 
the  purchaser  of  the  land  at  sheriff's  sale  on  execution,  and 
the  judgment  under  which  the  sale  is  P-iade  be  afterwards 
reversed,  the  sale  is  voided  thereby ;2   and  likewise  if  it  be 

'  Harrison  ■«.  Doe,  2  Blackf.  1;  Simomls  t.  Catlin,  3  Caines,  Gl;  Haydcn 
V.  Dunlap,  3  Bibb,  2G1;  Stcplicns  v.  Dennison,  1  Oregon,  19;  JIcLcan  Co. 
Bank  'o.  Flagg,  31  III.  290;  Keeling  'c.  Heard,  3  Head.  (Tenn.)  592;  Picl  c. 
Brayer,  30  Ind.  333;  Twogood  v.  Franklin,  27  Iowa,  239.  The  same  rule 
applies  with  equal  force  if  tlie  purchase  is  made  by  the  attorney  of  the 
plaintiff.  lb.  But  see  ante  ch.  iv.,  pp.  59,  60,  and  also  Wood  v.  Morehouse, 
1  Lans.  (N.  Y.)  405,  wherein  every  execution  purchaser,  including  tho 
plaintiif,  is  declared  a  hona  fide  purchaser. 

'  Ilutchcns  V.  Doe,  3  Ind.  528;  Doc  v.  Crocker,  2  Carter  (Ind.)  575. 


EXECU'nON    SALES   OF    HEAL    rHOl'EUTV.  247 

reversed  only  in  part,  as  for  costs,  -svlierc  tlie  sale  was  for  the 
costs  as  well  as  for  the  debt.^  And  so  it  is  lield,  in  Wisconsin.^ 
And  on  the  other  liand,  the  rulinpj,  when  he  tahcs  nothini^,  is 
in  his  favor.  In  Illinois  it  is  held,  upon  general  principles, 
tliat  if  the  execution  creditor  purchase  land  at  sale  on  his 
execution  by  a  description  so  indefinite  that  he  takes  nothing 
by  the  purchase,  that,  on  application,  the  sale  will  be  set  aside 
and  satisfaction  vacated,  and  a  new  execution  will  be  awarded. ^ 

§  700.  In  other  and  numerous  cases  it  is  held  that  the 
plaintiff,  as  execution  purchaser,  is  protected  as  a  purchaser 
honCL  fide.  In  these  cases,  both  in  law  and  in  equity,  the 
execution  plaintiff,  as  a  general  rule,  when  a  purcliaser  at 
sheriff's  sale  in  discharge  of  his  own  debt;  is  protected  to  the 
same  extent  as  third  persons  or  strangers  to  the  snit.'^ 

§  701.  The  courts  hold  that,  "  unless  the  equities  of  the 
adverse  claimant  arc  so  strong  and  persuasive  as  to  prevent 
the  application  of  the  rule,  which  indisputabl}^  obtains  as  to 
third  persons,"  the  purchaser  will  be  protected.  Such  is  the 
language  of  the  court  in  Butterfield  v.  Walsh.,  21  Iowa,  09. 

§  7U2.  In  the  case  cited  from  21st  Iowa  the  court  say  fur- 
ther: ''Defendant  had  not  even  a  deed.  But  if  he  had  and 
tailed  to  record  it,  and  plaintiff  have  no  notice  of  it,  then  in 
the  absence  of  equities  such  as  wc  have  referred  to,  it  would 
have  had  no  validity  against  him,  and  his  title  would  prevail. 
And  certainly  defendant  can  occupy  no  better  position,  hold- 
ing an  equitable  claim  without  any  paper  evidence  of  it,  and 
without  notice  thereof  to  plaintiff.  "  ^ 

§  703.  We  have  given  the  text  of  this  case  thus  fully  to 
show  that  the  ruling  of  court  is  fully  up  to  the  point  that  the 
execution  plaintiff,  when  a  purchaser,  is  protected  to  the  full 
extent,  if  the  proceedings  are  regular,  as  is  a  third  2:>crsoii  or 
stranger. 

'  Ilutchens  v.  Doe,  3  IikI.  538. 

«  Corwitli  V.  Stale  Bank,  18  Wis.  500. 

=  Ilu-hes  V.  Streeter,  24  111.  G47. 

*  ]5utterficld  v.  Wiilsh,  21  Iowa,  99;  AV'ood  v.  Cliapln,  3  Kan.  509;  Evans 
0.  ]\IcGlasson,  18  Iowa,  150. 

s  BiUterfield  v.  Walsh,  21  Iowa,  98,  99;  Wood  v.  Morcliousc,  1  Laus. 
(N.  Y.)  405. 


248  JUDICIAL   A2vD   EXECCTION    SALES. 

§  704.  But  it  is  also  held  in  Iowa,  liowever,  tliat  an  execu- 
tion plaintiif  who  bn3'S  at  sheriff's  sale  on  the  execution  in 
liis  ftivor,  after  an  appeal  is  taken  from  the  jndgment  on  which 
his  execution  emanates,  and  with  a  knowledge  of  such  an 
appeal,  although  no  supercedeas  bond  he  filed,  is  not  a  ho7ia 
fide  purchaser.  1  Tliat  if  the  judgment  be  reversed  on  such 
appeal,  his  title  as  executioner  purchaser  fails.  And  that  it  is 
equally  invalid  in  the  hands  of  his  grantee,  who  buys  after  the 
reversal  of  the  judgment.  That  such  purchaser  or  his  grantee 
do  not  come  within  the  provision  of  the  Iowa  Revision,  which 
declares  that  "  property  acquired  by  a  Jjona  fide  purchaser, 
under  a  judgment  subsequently  reversed,  shall  not  be  affected 
by  such  reversal."- 

YIII.     S.VLF.s   Made  Afiek  the  Hetuen  Day  of  the 

EXECLTION. 

§  705.  If  the  \c^\^^  be  made  before  the  return  day  of  the 
writ,  the  officer  may  sell  afterwards  on  the  same  writ  without 
a  renewal  of  process.^ 

§  70G.  It  is  immaterial  to  the  purchaser  as  to  the  validity 
of  the  sale,  whether  the  sale  be  made  before  or  after  the  return 
day;  or  at  what  time  the  return  is  made;  or  M'hether  the  re- 
turn be  correct  or  incorrect;  or  whether  any  return  be  made  at 
all,  if  the  writ  really  be  levied  before  the  return  day  mentioned 
therein.^  "It  is  not  the  return  of  the  officer  that  gives  title  to 
thcji  purchase,  but  the  sale,"  say  the  court  in  liemington  v. 
Lintldcuin^ 

'  Two.f^ood  V.  Franklin,  27  Iowa,  239. 

"  Revision  of  18G0,  Sec.  3541, 

^  Remington  v.  Linthicum,  14  Pet.  84,  02;  "Wlieaton  v.  Sexton,  4  "Wheat. 
503;  Barnard  v.  Stevens,  2  Ark.  420;  Cliilds  v.  McChcsney,  20  Iowa,  341; 
Stewart  d.  Severance,  43  Mo.  322;  Stein  v.  Chambliss,  18  Iowa,  474;  Philips 
V.  Dana,  3  Scam.  558;  Wood  v.  Colviu,  5  Hill,  231. 

^  Remington  v.  Linthicum,  14  Pet.  84,  92;  Wlieaton  v.  Sexton,  4  Wheat. 
503 ;  Stewart  v.  Severance,  43  JIo.  322 ;  Barney  v.  Patterson,  G  Ilar.  &  J.  204. 

»  14  Pet.  84,  92. 


EXECUTION    SALES   OF    REAL    PIIOPEK'IT.  249 

IX.     Sales  to  Third  Peksoxs,  Bona  Fide  Pukchasers. 

§  TOT.  Wlietlier  a  l)ona  fide  pnrcliaser  at  execution  sale,  lie 
being  a  third  person  and  not  the  execution  phiintitf,  and  buy- 
ing witliout  notice,  will  take  the  estate  free  from  unrecorded 
deed  and  prior  equities,  the  same  as  an  ordinary  purchaser  for 
value  by  private  contract  without  notice,  is  a  question  upon 
which  there  is  some  conflict  of  authorities.  But  the  later  and 
better  doctrine  is  that  the  execution  purchaser  takes  the  prop- 
erty against  all  such  claims  of  which  he  has  no  notice.^ 

§  TOS.  The  general  rule  has  been  extended  further,  and  the 
prevailing  doctrine  is,  as  has  been  seen,  that  the  sale  is  equally 
valid,  as  in  favor  of  a  purchase  by  the  execution  creditor.^ 

X.     Void  Execution  Sales. 

§  TOO.  If  the  court  from  Mdiicli  the  writ  emanates  has  not 
jurisdiction  of  the  subject  matter  of  the  judgment  then  the 
execution  sale  is  void.  The  purchaser  takes  no  title.  Having 
none  himself,  he  is  therefore  incompetent  to  confer  title  by 
transfer  to  another.  ^ 

§  TIO.    So  a  sale  made  on  process  issued  on  a  void  judgment,'* 

»  Butterfield  «.  Walsh,  21  low.a,  97,  99;  Parker  «.  Pierce,  10  Iowa,  227, 
233;  Lead.  Cas.  Eq.  pt.  1,  p.  75;  Waldo  ».  Russell,  5  Mo.  C87;  Jackson  v. 
Chamberlain,  8  Wend.  G20;  Den  «.  Rickman,  1  Green,  43;  Ins.  Co.  v.  Led- 
yard,  8  Ala.  8G8;  Orth  v.  Jennings,  8  Blackf.  420;  Heister  i).  Fortner,  2 
Binney,  40;  Killam  «.  Janson,  5  Harris,  4G7;  Wood  ■».  Chapin,  3  Kern,  509. 

■^  Sec  ante,  chapt.  iv.,  pp.  GO,  G2,  and  Wood  b.  JMurehouse,  1  Lans.  (X.  Y.) 
405. 

»  Abby  v.  Ward,  8  Mass.  79. 

*  Abby  «.  Ward,  8  Mass.  79;  Webster  t\  Reid,  11  TIow.  437;  Wriglit  ». 
Boone,  2  G.  Greene,  457;  Ilarslieyw.  Blackmarr,  20  Iowa,  IGl.  In  the  case 
last  cited,  Ilarshey  v.  Blackmarr,  20  Iowa,  IGl,  tlie  validity  of  an  execution 
sale  under  a  special  foreclosure  of  a  mortgase  was  involved.  In  the  fore- 
closure proceedings  under  which  the  sale  on  execution  was  made,  tlierc 
was  neither  actual  nor  constructive  service  on  nor  voluntary  appearance 
of  the  defendant  debtor;  but  an  i;nauthorized  and  insolvent  attorney 
entered  an  appearance  in  his  behalf.  In  a  proceeding  to  vacate  the  sale 
the  court  held  that  the  judgment  being  void,  the  sale  was  a  nullity  and 
conferred  no  title.  So  in  Webster  r.  Reid,  11  Ilov/.  437,  the  Supreme  Court 
of  the  United  States  say:  "These  suits  were  not  a  proceeding  in  rem 
against  the  land,  but  were  in  personam  against  the  owners  of  it.    Whether 


250  JUDICIAL    AND    EXECUTION    SALES. 

from  Avliatever  c.ausc  tlie  judgment  be  void,  tlie  sale  is  also 
void.  So  also  if  the  sale  be  made  on  a  forged  execution.  ^  Or 
on  an  execution  otherwise  valid  but  enjoined."  Or  on  an 
original  execution  issued  after  defendant's  death,  tlie  judgment 
not  liaving  been  revived.  ^ 

§  711.  But  though  a  sale  of  lands  npon  a  void  execution  is 
void,  when  made  on  it  alone,  yet  if  at  the  same  time  the  sale 
be  made  on  one  or  more  writs  that  are  valid,  the  otiicer  selling 
on  the  several  wu-its  together,  the  title  of  the  purchaser  will  be 
sustained."*     Otherwise  in  Indiana.^ 

§  712.  In  Missouri,  a  sale  of  lands  on  an  execution  which 
had  been  amended  and  altered  l)v  the  clerk,  after  it  had  been 
issued  and  delivered  to  the  sheriff,  was  held  to  be  void  wlierc 
the  execution  plaintiff  was  the  purchaser. °  But,  quere?  if  the 
sale  would  have  been  void,  if  made  to  a  stranger  to  the  execu- 
tion  without  notice  to  him  of  such  alteration.'' 

§  713.  A  lev^y  of  "  all  the  unsold  land  "  in  a  given  tract  is 
void  for  uncertainty  of  description,  and  a  sale  under  such  lexy 
is  likewise  void,  and  confers  no  title  or  rights  upon  purchaser.^ 

§  714.  The  identity  of  lands  sold  on  execution  must  be 
shown  to  a  reasonable  certainty.  ^ 

tlicy  all  resided  ■vvithiii  the  territory  or  not,  docs  not  appear,  nor  is  it  ."i 
matter  of  any  importance.  No  person  is  required  to  answer  in  a  suit  on 
wliom  process  lias  not  been  served,  or  %Yhosc  property  has  not  been 
attached.  In  this  case  there  was  no  personal  notice,  nor  an  attachnieut 
or  other  proccedini^  against  the  land  until  after  the  judgments.  Tlie  judg- 
ments, therefore,  are  nullities,  and  did  not  authorize  the  executions  on 
which  the  land  was  sold." 

*  Silver  ».  Coflee,  20  Texas,  4. 

2  Morris  v.  Bradford  &  Walker,  19  Geo.  527. 

^  Scammon  in.  Swartwout,  111.  320;  Erwin  v.  Dundas,  4  How.  HS;  Carter 
f7.  Read,  5  Ham.  221;  Lieper  i\  Thompson,  GO  Penn.  St.  177;  Sample  d. 
liarr,  1  Casey,  457. 

^  rierrick  v.  Graves,  IG  Wis.  157. 

^  Brown  v.  McKay,  IG  Ind.  484;  Ilutchins  v.  Doc,  3  Ind.  528;  Clark  t. 
Watson,  2  Iud.400;  Harrison  «.  Sip,  8,  Blackf.  455. 

«  Trigg  «.  Ross,  35  Mo.  1G5. 

'  Trigg  v.  Ross,  35  Mo.  165. 

8  Iluddleston  v.  Garrett,  3  Humph.  G29. 

9  round  v.  Pullen,  3  Yerg.  333;  Clemens  v.  Reynolds,  34  Mo.  579;  Hart 
p.  Rector  7  ^lo.  531. 


KXECUTION   SALES   OF   KEAL    TKOPERTr  251 

§  715.  Tlic  niinssignecl  riglit  of  dower  is  not  the  subject  of 
execution  sale;  and  if  it  were,  tlie  sale  of  a  given  number  of 
acres  to  be  taken  off  of  a  certain  side  of  the  dower  land,  i)ros- 
]x;ctively  to  be  assigned,  is  void  for  uncertainty.  It  has  no 
ideiititj  until  set  off,  and  the  subsequent  assignment  of  dower 
cannot  make  that  valid  which  was  invalid  at  the  time  the  sale 
was  made.^ 

§  716.  A.  levy  and  sale  of  land  on  execution  described  only 
as  a  "  tract  containing  "  a  certain  number  of  acres,  more  or 
less,  being  a  part  of  a  tract  granted  to  a  certain  person  in  such 
levy,  sale,  and  deed  named,  is  void  for  uncertainty,  and  so  is  a 
deed  by  the  officer  made  tliereon.  For,  though  as  between 
individuals  in  a  private  transaction  it  might  possibly  pass  an 
interest  capable  of  being  ascertained  or  reduced  to  a  certainty 
by  a  judicial  proceeding,  yet  as  such  aid  is  not  usually  given 
to  deeds  on  execution  sales,  the  sale  is  void  for  uncertainty. ^ 

§  717.  If  judgment  be  against  an  infant  defendant,  and  the 
execution  issue  against  the  estate  of  the  next  friend  of  such 
infant,  and  sale  be  made  thereon,  the  sale  is  void  and  the  pur- 
chaser takes  nothing.  3 

§  718.  A  levy  and  sale  made  after  the  official  term  of  the  officer 
expires,  and  when  his  official  power  has  ceased,  or  after  his 
removal  from  office,  is  simply  void.'^  But  otherwise  if  the 
writ  be  levied  by  him  before  his  office  ceases  in  either  manner 
above  named,  and  only  the  sale  be  made  after  the  termination 
of  his  office.^ 

§  710.  By  act  of  Congress  it  is  provided  that  when  a  United 
States  marshal  goes  out  of  office,  a  new  writ  of  execution  issues 
to  his  successor,  who  is  to  proceed  as  the  former  marshal 
would  have  proceeded  in  law  if  he  had  remained  in  office,  and 
thus  complete  the  levy  and  sale.*'     The  case  of  W/tcato)i  v. 

'  Shields  V.  Batts,  5  J.  J.  Marsh,  13. 

^  Clemen  v.  Reynolds,  ?>i  INIo.  579. 

3  Wilson  V.  McGee,  3  A.  K.  ]Marsh,  GOO. 

*  Bank  of  Tennessee  v.  Beaty,  3  Snccd,  30."). 

5  Lamed  v.  Allen,  13  IMass.  29.j;  Wlieaton  v.  Sexton,  4  Wheat.  503;  Fur. 
guson  V.  Lee,  9  Wend.  258,  2G0. 

*  Stewart  v.  Hamilton,  4  McLean,  534. 


252  juDiaAL  a:s'd  execution  sales. 

Sexton  originated  in  tliat  part  of  the  District  of  ColumLia 
wliicli  formerly  belonged  to  Maryland. 

§  720.  The  writ  of  execution  being  the  only  authority  of 
the  officer  to  sell,  it  follows  that  if  the  writ  is  satisfied  or  is 
leased  on  a  satisfied  judgment  he  has  no  power  to  sell,  and  that 
if  a  sale  be  made  after  such  satisfaction  it  will  be  void.^ 

§  T21.  But  a  sale  to  a  hona  fide  purchaser  will  not  be  void 
by  reason  of  tlie  writ  or  judgment  being  only  in  part  satisfied, 
^vhore  no  evidence  of  such  part  satisfied  accompanies  the  writ 
and  none  was  apparent  on  the  record  of  the  judgment.^  In 
case  of  part  satisfaction,  if  the  land  be  sold  for  the  whole 
original  amount  of  the  judgment,  and  the  execution  ^^laintiff 
be  the  purchaser,  then  on  bill  filed  in  equity  to  set  aside  the 
sale,  after  possession  and  imj^rovements  by  the  purchaser, 
equity  will  compel  a  reconveyance  of  a  proportionate  part  of 
the  land  to  the  execution  debtor. ^  But  in  Knight  v.  Apple- 
gate,^  where  a  large  portion  of  the  judgment  was  satisfied  on 
the  judgment  record,  and  the  clerk  issued  execution  for  the 
whole  amount  of  the  judgment  without  noting  the  credit  on 
the  writ  or  otherwise  o;ivin2:  the  sherifi"  notice  thereof,  bv 
reason  of  which  the  sheriff  raised  the  whole  amount  by  sale  of 
land,  the  court  held  that  the  sale  was  void.  There  was  in 
reality  no  judgment  to  sustain  the  execution.  The  two  amounts 
were  dift'erent,  whereas  they  should  correspond.  The  true 
amount  of  the  judgment  at  tlie  time  of  issuing  execution  was 
tlie  unpaid  balance  thereof,  and  that  amount  only  of  the  origi- 
nal judgment  the  execution  should  have  commanded  the 
oftlcer  to  make. 

§  722.  As  to  the  eff'ect  of  an  execution  sale  to  a  hona  fide 
purchaser,  when  the  judgment  was  fully  satified  jDreviously  to 
the  issuing  of  the  writ,  and  the  purchaser  buys  ignorant  of 
such    satisfaction,  and   nothing   appears  of  record  as   notice 

'  Hunter  V.  Stephenson,  1  Hill,  (S.  C.)  415;  Westou  v.  Clarke,  37  Mo.  5G8; 
Chiles  V.  Bernard,  3  Dana,  9G;  States  v.  Sal^-ers,  19  lud.  432;  Lavallo  c. 
Rowley,  17  Ind.  3G. 

=*  Walker  v.  McKuight,  15  B.  Mon.  4G7,  47G,  477. 

3  Ibid.  4G7. 

« 3  Mon.  388. 


EXECUTIOX    SALES    OF    EEAL    rJWl'KinV.  \i,)6 

thereof,  tlic  antlioritics  arc  variant,  but  the  better  opinion 
seems  to  be  that  such  sale  is  void  and  confers  no  title  on  tlic 
purchaser. 

§  ■723.  The  sale  held  invalid  in  Kuuj  v.  Goodtviii,  10  IMass., 
was  one  in  whicli  the  creditor  first  caused  the  arrest,  impress- 
ment and  voluntary  discharge  of  his  judgment  debtor;  then 
finding  land  on  which  to  levy,  issued  & pluries  execution,  on 
which  the  land  was  extended.  Upon  trial  of  the  right  under 
the  extent,  the  court  held  that  the  voluntary  discharge  of  the 
debtor  was  a  satisfaction  of  the  judgment;  that  the^^Z^^r/^s 
writ  afterwards  issued  thereon  was  therefore  void,  and  tiiat  no 
right  or  title  passed  by  the  extent.  ^ 

§  724.  The  same  principle  should  apply,  it  would  seem,  to 
a  sale  as  to  an  extent,  made  upon  a  satisfied  judgment.  If  not 
good  to  i^ass  a  title  for  a  term  of  years  it  ought  not  be  good  to 
pass  the  fee. 

§  725.  InWood  v.  Colvlii,  in  JSTcwYork,  it  was  held  that  a 
purchaser  at  sheriff's  sale,  under  a  satisfied  judgment,  buying 
with  knowledge,  acquired  no  title  as  against  a  purchaser  under 
a  junior  unsatisfied  judgment,  and  that  his  assignee  or  vendee 
occupied  no  better  position.  That  if  satisfied  the  power  to 
sell  ceased;  such,  too,  it  is  believed,  is  the  general  rule;  for 
who  buys  under  a  power  buys  at  his  own  risk." 

§  720.  And  in  Swan  v.  Saddlemire,^  Justice  Sutuekland 
says:  "■  I  am  strongly  inclined  to  the  opinion  that  an  execution 
issued  upon  a  judgment  which  has  been  paid  and  satisfied,  is 
to  be  considered  absolutely  void,  and  not  voidable,  and  that 
the  purchaser  under  such  execution  would  acquire  no  title.  It 
is  a  general  rule  that  a  purchaser  under  a  power  purchases  at 
his  peril.  If  there  was  no  subsisting  power  or  authority  to 
sell,  no  title  is  acquired.     But  I  abstain  from  a  definitive 

'  King  V.  Goodwin,  IG  Mass.  G;"!. 

»  Wood  V.  Colvin,  2  Hill,  (N.  Y.)  5GG;  Sherman  v.  Boyce,  15  Jolius.  44:}; 
Jaclvsou  V.  Anderson,  4  Wend.  447;  Lewis  v.  Palmer,  G  Wend.  CG7; 
]\rcGinty  G.  Herrick,  5  Wend.  240;  Swan  v.  Saddlemirc,  8  Wend.  G7G,  G81 ; 
Nielsen  v.  Nielsen,  3  Barb.  5G5;  King  v.  Goodwin,  IG  Mass.  G3;  Mondial 
r.  Brown,  3  Rich.  117. 

3  8Wcnd.  G7G,  G81. 


25-i  JUDICIAL   AXD    EXECUTION    SALES. 

opinion  upon  this  point  because  I  do  not  deem  it  necessary  to 
tlie  decision  of  this  motion,  and  it  may  hereafter  directly  arise 
between  other  parties  connected  with  this  transaction." 

§  727.  Again  in  Wood  v.  Colvln,^  the  court  say:  "  If  a  pur- 
chaser can  acquire  a  title  under  a  satisfied  judgment,  it  must 
be  on  the  ground  that  there  has  been  some  fault  on  the  part 
of  the  judgment  debtor.  If  he  stands  by  without  taking  any 
measures  to  arrest  the  sale,  and  without  giving  notice  of  the 
payment,  and  suffers  a  purchaser  in  good  faith  to  part  with 
his  money,  he  may  be  estopped  from  afterwards  alledging  the 
payment  to  defeat  the  title  of  the  purchaser." 

§  728.  But  such  would  not  be  the  ease  if  the  purchaser 
himself  knew  the  judgment  was  satisfied  at  the  time  of  the 
purchase;  having  full  notice  thereof,  the  debtor  woukl  not  be 
in  fault  by  omitting  to  tell  him  what  he  already  knew.^ 

§  729.  In  Illinois  it  is  held  that  a  sale  made  on  a  day  prior 
to  the  day  of  sale  designated  by  the  notice,  is  absolutely  void, 
not  only  as  to  the  purchaser,  but  also  as  to  his  grantee  with 
notice;  and  moreover,  that  if  the  plaintifll:'  be  the  purchaser  he 
is  chargable  with  notice  of  such  irregularity.^ 

§  730.  In  Missouri,  it  is  held  that  a  levy  and  execution 
sale  of  a  tract  of  land  as  an  entirety,  by  its  original  descrip- 
tion, after  it  was  subdivided  into  lots,  streets  and  alleys,  and 
sales  of  lots  made  to  other  parties,  was  void  and  conferred  no 
title  on  the  purchaser.* 

§  731.  In  Kentucky  it  is  well  settled  by  repeated  decisions 
tliat  if  the  sheriff  sell  on  execution  a  material  quantity  of  land 
more  than  is  required  to  satisfy  the  writ  when  the  land  is  sus- 
ceptible of  division,  he  exceeds  his  authority  and  the  sale  is 
void.  5 

'  2  Iini,  5GG,  5G8. 

=■  Wood  v.  Colvin,  2  Hill,  5GG,  5G8;  I^Iyers  v.  Cochran,  29  Ind.  250.  In 
the  case  last  cited,  Myers  v.  Cochran,  the  purchaser,  who  had  made  pay- 
ment, refused  repayment,  with  a  knowledge  that  the  judgment  was  satis- 
fied, and  he  took  nothing  by  his  purchase. 

3  King  V.  Cushman,  41  111.  31. 

*  Kcnry  v.  Mitchell,  32  Mo.  512. 

*  Stover  v.  Boswell,  3  Dana,  232;  Patterson  v.  Corneal,  3  A.  K.  Marsh. 
G18;  Davidson  v.  McMintry,  2  J.  J.  IMarsh.  GS;  IMorris  v.  Bruce,  9  Dana, 
211 ;  Adams  c.  Riser,  7  Dana,  208;  Shropshire  r.  Pullcn,  3  Bush.  {Ky.)  512. 


KXECCTION   SALT-:S   OF   KIOAL    riJOl'ElJTV.  255 

§  732.  And  so,  if  the  writ  calls  for  one  sum  and  tlio  judg- 
ment for  another  and  different  one,  a  sale  on  such  writ  is  void 
unless  the  difference  is  so  small  as  to  come  within  the  principle 
^^  dimijininKS  non  curat  lex;''''  and  the  transfer  of  the  property 
to  a  honafide  purchaser,  by  the  purchaser  under  the  execution 
•will  not  alter  the  case. ' 

§  733.  So  an  execution  sale  of  real  estate  based  on  a  pro- 
ceeding ill  rein  by  attachment  levied  on  real  estate  of  a  non- 
resident owner,  was  held  to  be  void  where  it  appeared  from 
the  record  that  there  was  no  personal  service  nor  newspaper 
publication,  or  mailing  of  notice  and  petition  to  defendant  as 
required  by  statute,  and  no  evidence  appeared  of  defendant's 
residence  being  unknown,  or  that  it  could  not  be  ascertained. ^ 

§  734.  The  statute  in  Illinois  allows  execution  to  issue 
against  the  lands  of  a  decedent,  on  a  judgment  rendered  in  his 
life  time,  by  first  giving  a  certain  notice  to  the  executor  or 
administrator;  the  Supreme  Court  of  the  United  States,  as  also 
the  Supreme  Court  of  Illinois,  hold  that  such  statutory  remedy 
is  cumulative,  and  does  not  prevent  a  resort  to  the  common 
law  remedy  of  scire  facias  to  revive  the  judgment.  But  that 
an  execution  issued  without  either  such  notice  or  revival  by 
scire  facias  against  lands  of  a  decedent  is  a  nullity,  and  all 
proceedings  under  it  are  void.^ 

§  735.  Such  judgment,  on  the  death  of  the  defendant,  (sa^-s 
Justice  SwAVNE,)  "  survives  only  for  the  preservation  of  its  lien, 
and  as  a  basis  of  future  action."  It  has  no  practical  vitality  for 
enforcement  by  the  mere  issuance  of  an  execution.  The  notice 
provided  by  the  statute,  or  else  its  alternative  process  of  revival 
by  writ  oi  scire  facias  must  be  resorted  to,  and  is  indispensable 
to  give  the  judgment  such  vitality  as  Avill  sustain  an  execution 
and  sale  thereon.-'^ 

§  73G.     In  a  proceeding  bringing  in  question  the  title  of  a 

'  IListings  'V.  Johnson,  1  Nev.  G13. 

'  Hudson  V.  Tibbetts,  16  Iowa,  97;  Bvogliill  v.  Lash,  3  G.  Greene,  357; 
McGahcr  v.  Carr,  G  Iowa,  331. 

3  Ransom  v.  Williams,  2  Wall.  (U.  S.)  313 ;  Picket  v.  Ilartsock,  15  III.  273 ; 
Brown  v.  Parker,  ib.  307;  Finch  v.  Martin,  19  ib.  111. 

<  Ransom  v.  AVilliams,  2  Wall.  313 ;  Picket  v.  Ilartsock,  15  111.  279 ;  Brown 
V.  Parker,  ib.  307;  Finch  v.  Martin,  19  ib.  111. 


256  JUDICIAL   AND    EXECUTION    SAUKS. 

piircliasc  uiuler  slieriff's  sale,  made  on  execution  issued  after 
the  deatli  of  the  execution  debtor,  the  burthen  of  proof  rests 
upon  the  purchaser  at  slieriff 's  sale,  to  show  that  the  notice 
was  given  in  compliance  with  the  statute,  or  else  a  revival  as  at 
common  law,  by  scire  facias.'^ 

§  737.  AVhere  two  parcels  of  land  are  included  in  one  and 
the  same  mortgage,  a  sej^arate  execution  sale  of  the  right  of 
redemption  of  one  tract  only,  on  execution  against  the  mort- 
gagor, is  inoperative  and  void.  It  passes  nothing  to  the  pur- 
chaser. (There  is  no  rule  by  which  redemption  can  be  made 
of  the  one  tract  alone;  and  the  execution  purchaser  has  no 
claim  to  redeem  the  other  tract  which  is  not  included  in  his 
purcliase.)^ 

§  73S.  If  an  order  of  sale  on  execution  issued  to  an  officer 
be  without  a  seal,  when  by  the  law  of  the  land  a  seal  is 
required,  it  is  invalid,  and  a  sale  of  lands  made  in  virtue  thereof 
is  void;    the  purchaser   takes   nothing.^     So,  in   Indiana,  a 

»  Ranson  d.  Williams,  2  Wall.  313. 

2  Webster  t.  Foster,  15  Gray  (]\Iass.,)  31 ;  Johnson  ■».  Stevens,  7  Cusli.  435. 

'^  Ins.  Co.  vi.  Halleck,  G  Wall.  55G.  This  case  arose  uudel-  the  locnl  code 
of  Indiana,  which  provides  that  the  execution  is  in  all  cases  the  remedy 
on  a  money  judgment,  and  shall  he  sealed  with  the  seal  of  the  court. 
"In  courts  which  pursue  the  chancery  practice  in  foreclosing  mortgages 
unaflTectcd  by  statutory  provisions,  the  sale  is  made  by  a  commissioner 
appointed  by  the  court.  This  is  usually  one  of  the  standing  master  com- 
missioners of  the  court,  or,  for  reasons  shown,  some  special  commissioner 
that  purpose.  In  neither  case  does  any  process,  or  order,  under  the  court, 
issue  to  the  commissioner.  He  may,  if  he  thinks  proper,  procure  a  copy 
of  the  decree  and  order  appointing  him  commissioner,  or  if  the  party  who 
wishes  the  decree  executed  thinks  proper  in  this  mode  to  demand  of  him 
lo  proceed,  he  may  furnish  him  with  a  copy.  But  it  is  believed  that  the 
decree  itself  is  the  authority  on  which  the  commissioner  acts,  and  if  he 
l^roceeds  in  conformity  to  the  decree,  the  sale  will  be  valid,  although  no 
copy  has  been  placed  in  the  hands  of  the  commissioner.  In  the  courts 
of  Indiana,  the  distinction  between  common  law  and  chancery  proceed- 
ings is  abolished,  and  under  their  code  of  civil  procedure  but  one  form  of 
action,  called  a  civil  action,  is  known.  This  code  provides,  §  407.  that 
♦when  a  judgment  requires  the  payment  of  money,  or  the  delivery  of  real 
or  personal  property,  the  same  may  be  enforced  by  execution.'  §  409 
says:  'The  execution  must  issue  in  the  name  of  the  state  and  be  directed 
to  the  sheriff  of  the  county,  sealed  with  the  seal  and  tested  by  the  clerk 
of  the  court.'     §  G35,  which  relates  to  the  proceedings  lo  foreclose  a  mort- 


EXECTTION    SALES    OF    REAL   TROrERTY.  257 

slicriff's  sale  of  several  parcels  of  land,  all  together  'hi  solldo, 
not  liaving  iirst  offered  eacli  separately,  is  absolutely  void.^ 

§  739.  Where  the  mode  and  form  of  proceedings  in  the 
highest  courts  of  common  law  of  a  state  are  adopted  as  the 
practice  in  the  United  States  courts  of  any  district,  a  United 
States  marshal's  sale  on  execution,  in  such  district,  made  other- 
wise than  in  accordance  with  such  common  law  ^■)ractice  of  said 
state  courts,  is  invalid  and  will  not  confer  title  on  the  pur- 
chaser. A  departure  in  such  case  from  the  local  law  and 
practice  requiring  an  appraisement  of  the  property  to  be  sold, 
and  inhibiting  sale  for  less  than  a  named  pro2')ortion  of  the 
appraised  value,  avoids  the  sale.^ 

§  740.  A  judgment  in  jpersonam  without  jurisdiction  of 
the  person  of  defendant,  is  a  void  judgment,  and  an  execution 
sale  thereon  is  also  void,  lie  who  redeems  from  such  sale  as  a 
judgment  creditor  takes  nothing  by  his  redemption;  and  an 

gage,  we  give  xcrhntim:  'A  copy  of  the  order  of  sale  and  judgment  shall 
be  issued  and  certified  by  the  clerk,  under  the  seal  of  the  court,  to  the 
shcrifl",  who  shall  thereupon  proceed  to  sell  the  mortgaged  premises,  or 
so  much  thereof  as  maybe  necessary  to  satisfy  the  judgment,  interest  and 
costs,  as  upon  execution;  and  if  any  part  of  the  judgment,  interest,  and 
cost,  remain  unsatisfied,  the  sheriff  shall  forthwith  proceed  to  levy  the 
residue  of  the  other  property  of  the  defendant.'  Though  the  order  of  sale 
here  described  may  not  come  under  the  name  of  any  of  the  recognized 
common  law  writs  of  execution,  as  capias,  fieri  facias,  or  others,  yet  it 
comes  clearly  within  the  function  and  supplies  the  pxirpose  of  an  execu- 
tion— that  is  a  process  issuing  a  court  to  enforce  its  judgment.  The 
statute  recognizes  it  as  such,  and  requires  that  it  shall  issue  under  the  seal 
of  the  court.  The  sheriff  to  whon.i  it  is  directed  is  required  to  proceed 
'  as  upon  execution.'  If  the  del)t  is  not  satisfied  by  the  sale  of  the  prop- 
erty specifically  mentioned  in  the  order,  it  then  operates  as  n  fieri  facias, 
under  which  the  sheriff'  is  directed  to  levy  the  residue  of  any  other  prop- 
erty of  the  defendant.  It  is,  therefore,  to  all  intents  and  purjioscs  an 
execution,  and  the  statute  expressly  requires  that  it  must  issue  under  the 
seal  of  the  court.  Without  the  seal  it  is  void.  We  cannot  distinguish  it 
from  any  other  writ  or  process  in  this  particular.  It  is  equally  clear  that 
under  the  Indiana  statute  the  sheritf  could  not  sell  without  this  order, 
certified  under  the  seal  of  the  court,  and  placed  in  his  hands.  This  is  his 
authority,  and  if  it  is  for  any  reason  void,  his  acts  purporting  to  be  done 
under  it  are  also  void." 

*  Tylers.  Wilkinson,  27  Ind.  4o0. 

=>  Smith  V.  Cockriil,  C  Wall.  (U.  S.)  75G. 

17 


25 S  JUDICIAL   AKD   EXECUTION   SALES. 

execution  sale  of  the  premises  made  under  the  statute  of  Illi- 
nois, at  the  instance  of  the  redemptioner  and  in  pursuance  of 
such  redemption,  is  also  void,  and  will  be  so  regarded  even  in 
collateral  proceedings. ^ 

§  T-il.  If  a  sale  be  merely  irregular,  or  on  irregular  process 
it  is  voidable  only;  but  if  made  without  authoritj",  it  is  void. 

§  742.  In  St.  Bartholomevis  Church  v.  Wood-  the  rule 
laid  down  in  Pennsylvania  is  declared  to  be  "  that  a  sheriff's 
sale  on  a  Jl.  fa.  without  a  waiver  of  inquisition  is  void  as 
wanting  authority,  and  is  not  confirmed  by  the  acknowledg- 
ment of  the  deed,  or  the  distribution  of  the  proceeds  of  sale." 
And  as  to  mere  irregularities,  the  court  add,  in  this  case,  that 
"the  acknowledgment  of  the  sheriff's  deed  cures  irregularities 
on  the  process  or  proceedings,  but  not  a  want  of  authority  to 
sell."  But  this  acknowledgment  is  not  to  be  understood  to  be 
the  mere  acknowledgment  in  jxcis  of  the  officer.  In  Pennsyl- 
vania it  is  an  act  in  court,  and  its  reception  is  a  judicial  act.^ 
Hence,  in  McAfee  v.  Ilariis^  the  court  say:  ''  After  acknowl- 
edgment of  the  sheriff's  deed  in  open  court  the  title  of  the 
sheriff's  vendee  cannot  be  effected  by  mere  irregularities,  how- 
ever gross;  nothing  but  fraud  in  the  sale,  or  want  of  authority 
to  sell,  can  defeat  the  title." 

§  743.  This  mode  of  taking  the  acknowledgment  of  a 
sheriff's  deed  in  open  court  in  Pennsylvania  operates  as  con- 
firmation of  the  sale,  so  as  to  assimulate  such  sales  in  that 
state,  and  in  that  respect,  to  a  certain  extent,  to  judicial  sales, 
as  has  elsewhere  been  stated;  but  while  such  is  the  case,  it 
does  not  seem  to  give  validity  to  a  sale  made  without  authority 
of  law,  which  otherwise  would  be  void.  Nor  would  it  in  a 
judicial  sale.'' 

'  Joluisoii  V.  Baker,  38  111.  98. 

«  Gl  Penn.  St.  90, 103.  See  also  David  v.  Lent,  8  Watts,  422 ;  Wolf  v.  Payne, 
11  Case}',  97;  McLaughlin  v.  Shields,  3  Jones,  289;  Shoemaker  v.  Ballard, 
3  Harris,  94;  McAflee  v.  Harris,  1  Casey,  103;  Shields  v.  Milteiiberger,  3 
Harris,  78. 

=  Thompson  v.  Philips,  1  Bald.  C.  C.  272. 

*  1  Casey,  103;  St.  Bartholomew's  Ch.  t\  Wood,  Gl  Penn.  St.  96,  103. 

*  Slu-iver  b.  Lynn,  2  How.  43, 50,  60 ;  2  Bouvier,  415 ;  ante  chap.  3,  Thomp- 
6on  V.  Philips,  1  Bald.  C.  C.  24ri,  373. 


EXKCUTIOX    SALICS   OF   KKAL    I'llOrEKTV.  259 

§  7-J-4.  A  jiidi^-mciit  in  jiersonam,  on  service  bj  pnblicr.tion 
and  no  personal  service  of  process  wliatever,  is  void,  M'lien 
rendered  by  default,  tlierc  beini^  no  appearance  of  tlie  defend- 
ant; and  wlieuever  on  sucli  judgment  an  ordinary  wi'it  of 
fieri  facias  issues  and  property  is  sold  thereon,  the  sale  is 
void,  and  the  execution  purchaser  takes  nothing  thereby.  Such 
a  proceeding  is  not  "due  ]n-ocess  of  law."  Instead  of  a  gen- 
eral judgment  in  personam  the  creditor  should  proceed  by 
attachment  so  as  to  obtain  jurisdiction  over  the  property,  and 
should  take  judgment  against  the  property  specifically  and  an 
order  of  sale  thereof.  A  sheriff's  sale  and  deed  on  the  judg- 
ment in  personam  is  of  no  efi'ect  and  maj^  be  impeached  in  a 
col  1  a teral  ]) roceed  i  n g.  ^ 

§745.     A  pui'chase  at  an  execntion  sale,  made  Avith  intent ' 
to  defraud,  hinder,  or  delay  the  creditors  of   tlie  execntion 
debtor,  is  fraudulent  and  void  as  against  all  hona  fide  credit- 
ors, or  other  execution  purchasers  of  such  debtor." 

§  746.  The  execution  and  judgment  must  correspond  as  to 
the  character  of  the  parties.  A  recovery  of  judgment  by  one 
in  his  character  of  administrator  will  not  su2">port  an  execution 
in  his  favor  describing  him  only  in  his  individual  character, 
without  the  addition  of  administrator.  The  writ  will  be  void, 
and  so  whether  the  judgment  and  writ  be  against  or  in  favor 
of  an  administrator.  The  execution,  in  either  case,  must 
correspond  with  the  judgment  as  to  the  names  and  character 
of  the  parties.^ 

§  747.  So,  a  sale  of  a  given  quantity  of  land  out  of  a  speci- 
fied tract,  Avithout  identity  or  description  of  the  land  sold,  is 
void.'i 

§  74S.  As  well  at  common  law  as  by  the  statute,  a  sale,  in 
Indiana,  of  lands  of  a  decedent  cannot  be  made  upon  an  execu- 
tion which  is  issued   on  a  judgment  rendered  against  the 

'  Abbott  V.  Shcphci-d,  44  Mo.  233;  Smith  v.  McCutchcn,  38  Mo.  415;  Lat- 
timer  «.  Union  Pacific  R.  R.  Co.,  43  Mo.  105. 
2  Diuican  t).  Forsythc,  3  Dana,  229. 
'  Palmer  «■.  Palmer,  2  Conn.  4G2. 
*  Peck  V.  Mallams,  10  N.  Y.,  509 ;  Clemens  v.  Rannels,  34  Mo.  579. 


2G0  JUDICLU.  AXD  I:xEcuno:^r  sales. 

executor;  and  if  the  semblance  of  it  be  carried  out,  it  Avill 
confer  no  title.     It  will  be  void.^ 

§  74D.  And  so  a  sale  of  lands  made  on  an  execution  and 
judo;ment  against  two  defendants,  one  of  wliicli  is  dead,  is  void, 
if  the  execution  bear  teste  of  a  date  subsequent  to  the  death 
of  one  of  them." 

§  750.  "  If  a  bidder  make  representations  to  deter  other 
bidders  and  is  successful  in  deterring  them,  his  purchase  is 
fraudulent  and  void,""  and  will  be  set  aside. 

'  Doc  '6.  Wood}^  4  McLean,  75. 
*  Erwin  ®.  Duiulas,  4  How.  58. 

8  Vanlrccs  15.  Hyatt,  5  Iml.  487;  Ilogcj  i-.  "Wilklns,  1  Grant  Cas.  (Penu.) 
67;  Bimts  v.  Cole,  7  Blackf.  2C5. 


CIIArTETw    XVIII. 

THE  DEED. 

I.  By  Whom  to  be  jMade. 

II.  To  "Whom  to  be  ]\Iade. 

III.  AViiEN  to  be  ]\Lvde. 

IV.  "What  Passes  by  it. 
V.  Its  Eecitals. 

VI.  Its  Relation. 

VII.  PiuoraTY. 

VIII.  Registration. 

IX.  Collateral  Impeachment. 

X.  How  FAR  Execution  Defentdant  is  Estopped  by  the  Deed. 

I.     By  Whom  to  be  Made. 

§  751.  TliG  deed  can  only  be  executed  by  tlie  officer  liimself, 
or  by  Ills  general  deputy,  and  whether  by  the  one  or  by  the  other, 
it  must,  in  either  case,  be  in  the  name  of  the  principal  officer, 
and  as  his  act.^ 

§  752.  A  special  deputy  cannot  execute  the  deed;  nor  can  a 
de2)uty  execute  the  deed  in  his  own  name.- 

§  753.  ]3y  statute  in  most  of  those  states  in  which  lands  arc 
Bold  on  execution,  instead  of  being  extended,  the  deed  may  bo 
made  by  the  successor  of  the  officer  Avho  sells,  when  such  officer 
has,  after  the  sale,  ceased  from  any  cause  to  exercise  the  func- 
tions of  the  office  before  executing  a  deed  for  the  lands  sold : 
and,  even  without  such  a  statute,  the  court,  in  a  proper  case, 
will  order  the  successor  of  the  officer  selling  to  execute  the 
deed. 3     But  in  California  the  rule  seems  to  be  established  that 

Mackson  ^.  Bush,  10  Jolm.s.  223;  Tillotson  «.  Cheatham,  2Jolms.  63; 
Iliiincs  V.  Linscy,  4  Ilam.  88;  Jackson  v.  Randall,  18  Johns.  7,  8;  Glas^i^ow 
V.  Smith,  1  Overt.  144;  Carr  v.  Hunt,  14  Iowa,  20G;  Young  v.  Smith,  10  B. 
Mon.  293,  Iowa,  20G;  Keller  v.  Blanchard,  21  La.  Ann.  38. 

'  Anderson  v.  Brown,  9  Ham.  151;  Lewis  v.  Thompson,  3  Cal.  200. 

'  Fowblc  V.  Rayburg,  4  Ham.  45;  Woods  v.  Lane,  2  S.  &  R.  53;  Prcscott 
V.  Everts,  4  Wis.  314;  Conger  v.  Converse,  9  Iowa,  55G;  Thurston  v.  Boyd, 
25  Miss.  598;  Frctwell  ».  Mooraow,  7  Geo.  2G4;  McElmurry  ».  Ardis,  3 
Strobh.  212;  People  v.  Boring,  8  Cal.  40G;  Philips  v.  Jamison,  14  B.  Mon. 
579. 

(2G1) 


2G2  JUDICIAL   AND   EXECUTION    SALES. 

the  individiu'il  officer  selling  shall  execute  the  deed,  even  if  his 
term  of  office  has  subsequentlj  expired,  and  in  case  of  his 
death,  then  by  a  master  appointed  by  court.  ^  In  Ohio,  Penn- 
sylvania, and  some  others  of  the  states,  the  practice  is  to  con- 
firm the  sales  in  court;-  and  it  has  been  holden  where  this 
practice  prevails  that  without  confirmation  sales  on  execution 
are  invalid.^ 

§  754:.  In  the  leading  case  here  cited,  the  court  held  that  a 
"deed  executed  by  the  deputy  sheriff,  in  the  name  and  on  the 
belialf  of  his  principal  was  a  good  execution  of  the  deed." 
,  That  a  "  sale,  and  the  consummation  of  that  sale  by  deed,  are 
acts  M'hich  tlie  slieriff  may  do  by  deputy."  That  "  the  law 
does  not  recpiire  them  to  be  done  by  the  slieriff  in  person."^ 
This  doctrine  holds  good  to  tlie  present  day. 

§  755.  Ill  Missouri  the  law  requires  sheriff's  deed  for  prop- 
erty sold  on  execution  to  be  acknowledged  before  the  clerk  of 
the  court,  by  the  sheriff";  a  certificate  of  such  acknowledgment 
to  be  endorsed  by  the  clerk  on  the  deed  under  the  seal  of  the 
court,  and  a  correct  entry  to  be  made  of  record  by  the  clerk, 
descril)ing  the  conveyance  and  the  names  of  the  parties  to  the 
suit  in  which  the  judgment  was  rendered  on  which  the  execu- 
tion emanated. 

§  750.  It  is  held  by  the  supreme  court  of  that  state,  that 
this  provision  of  the  statute  is  merely  director  so  far  as  to  the 
entry  of  record.  That  a  purchaser  having  no  control  over  the 
cleric  cannot  be  j^rejudiced  by  the  omission,  or  by  the  irregu- 
larity of  the  entry,  and  that  the  deed  will  be  good  if  the  proper 
endorsement  is  made  thereon,  although  the  entry  of  record  be 
substantially  defective. " 

§  757.  The  deed  must  contain  apt  Avords  of  conveyance  and 
grant,  and  though  no  particular  form  is  required,  it  must 
substantially  purport  to  grant  and  convey  the  premises  to  the 
purchaser  in  consideration  of  the  contract  of  sale  and  payment 

'  Aiitliony  V.  Wcssell,  9  Cal.  103;  People  v.  Boring,  8  Cal.  40G. 
'  Curtis  V.  Norton,  1  Ham.  278. 
'  Curtis  V.  Norton,  1  Ham.  378. 

■•Jackson  v.  Bush,  10  Johns.  223.    The  same  ruling  had  been  previously 
mndc  in  Tillotson  v.  Cheatham,  2  Johns.  G3. 
'  Scruggs  V.  Scruggs,  41  Mo.  242. 


THE   DEED.  2G3 

of  tlio  purchase  money.  In  tlie  languaf^c  of  the  court,  in 
Juhnson  v.  BaiitocJc,  "it  must  appear  from  the  lanii:uage 
employed  that  it  was  tiic  intention  to  convey  the  title,  and  the 
language  must  purport  to  have  that  eflect,"^ 

§  758.  We  may  also  add  that  it  must  purport  to  be  act  of 
the  officer  in  his  official  ca])acity,  and  not  merely  the  individual 
act  of  the  man  or  person  lilling  the  office. 

§  759.  However  sufficient  it  may  be  to  show  that  a  pur- 
chase had  been  made  at  execution,  and  however  sufficient  as  a 
mere  certificate  of  purchase  on  which  to  base  a  deed,  jet,  unless 
it  pur])ort  to  transfer  the  land,  and  convey  the  title,  it  will  not 
be  sutKcient  as  a  deed.  In  the  case  cited  from  Illinois,  the 
instrument,  (a  copy  of  which  is  given  in  the  subjoined  note,) 
instead  of  purporting  to  be  a  deed,  really  negatives  such  idea 
by  the  words,  "are  entitled  to  a  deed  for  the  premises  so 
sold."- 

'  Johnson  ■?;.  Bantock,  38  111.  111. 

-  See  .Johnson  «.  Bantock,  the  instrument  there  relied  on  as  tlic 
deed,  was  in  words  and  figures  as  follows:  "Know  all  men  by  these 
presents  :  That  I  have  this  day  sold  to  Olof  Johnson  and  Sanuiel 
.Remington  the  following  described  tract  of  land,  to  wit:  The  south- 
east quarter  of  the  north-east  quarter  of  Section  No.  29,  in  township 
No.  14,  north  of  Range  four,  east  of  the  foarth  principal  meridian,  in  the 
county  of  Henry,  in  the  state  of  Illinois.  The  above  described  land  being 
the  same  that  was  to  Joshua  Johnson  on  execution  in  favor  of  B. F.John- 
son, and  against  John  J.  Hall  and  Robert  Duncan,  on  the  24th  day  of  July, 

1858,  for  the  sum  of  $195.42,  and  redeemed  on  the  24th  day  of  October, 

1859,  by  Olof  Johnson  and  Samuel  Remington,  who  were  judgment 
creditors  of  the  said  John  J.  Hall  and  Robert  Duncan,  by  paying  to  mo 
good  and  lawful  money  for  said  Joshua  Johnson,  the  sum  of  $218.09,  it 
being  the  full  amount  of  said  judgment  and  interest  up  to  that  date  and 
no  more,  and  I  have  advertised  and  offered  the  same  for  sale  at  public 
auction  this  14th  day  of  December,  1859,  according  to  law,  and  the  said 
Olof  Johnson  and  Samuel  Remington,  by  force  of  the  statute  in  such  case 
made  and  provided,  were  considered  as  having  bid  the  sum  of  $219.88,  it 
being  the  amount  of  said  redemption  money  so  paid  by  Olot  Johnson  and 
Samuel  Remington  and  interest  thereon  from  the  day  of  such  redemption 
up  to  the  present  time,  and  no  more,  and  there  being  no  bid  greater  than 
said  amount  offered,  the  said  lands  were  struck  off  and  sold  to  said  Olof 
Johnson  and  Samuel  Remington,  judgment  creditors  as  aforesaid,  at  the 
said  amount  of  redemption  money  and  interest;  and  the  said  Olof  John- 
son and  Samuel  Remington  are  entitled  to  a  deed  for  the  premises  so  sold, 


264:  JUDICIAL   AND   EXECCHON   SALES. 

§700.  Ill  some  states  the  officer  ^vllo  sells  may  execute  tlic 
deed  after  his  term  expires. ^  This,  too,  though  his  successor 
ma}'  have  entered  on  the  duties  of  his  office.- 

§  701.  The  certilicate  of  sale  and  the  deed  should  refer  to 
01*  recite  the  writ  on  which  the  sale  is  made,  and  no  other, 
althouirh  several  writs  be  in  the  hands  of  the  officer.  But  the 
full  amount  sold  for  should  be  stated. 

§  702.  The  disposition  of  the  money  is  matter  for  state- 
ment in  the  return. 

§  703.  The  deed  is  good  as  between  the  purchaser  and 
execution  defendant,  if  made  officially  by  the  officer,  although 
the  certificate  of  acknowledgment  be  defective  as  to  the  official 
character  of  the  person  acknowledging  it  and  refer  to  him  only 
by  his  personal  name.^  And  so  it  is  good  if  made  to  the 
assignee  of  the  purchaser,  stated  to  be  such  in  the  deed  by  the 
officer.^ 

II.     To  wiioii  TO  EE  Made. 

§  704:.  The  sheriff's  deed  may  be  made  to  the  purchaser,  or 
to  his  assigns. ^5  Or,  in  case  of  the  death  of  the  purchaser,  to 
his  devisee,"  or  legal  heirs,''  as  the  case  may  be. 

§  705.     The  purchaser  can  assign  his  bid,  and  a  deed  from 

to  have  find  to  hold  the  said  described  premises,  with  all  the  appurte- 
nances thereunto  belonging  to  the  said  Olof  Johnson  and  Samuel  llemiug- 
tou,  tlieii"  heirs  and  assigns  forever. 

"Witness  my  hand  and  seal  this  14th  day  of  December,  1859. 
, . — ■— ^  s      [Duly  acknowledged  as  a  deed.] 
\  SE.\L.  j-  "PtniNELL  II.  Smith. 

'  "SlierifT  of  Henry  County,  Illinois." 

This  instrument  the  court,  that  as  a  deed  it  "is  not  sufficient."  38 
111.111. 

»  Lemon  v.  Craddock,  Litt.  Sel.  Cas.  251. 

"■  People  V.  Boring,  8  Cal.  40G;  Anthony  v.  Wcsscll,  9  Cal.  103. 

3  In  the  matter  of  Smith,  4  Nev.  254. 

■«  McClure  v.  Englchart,  17  III.  47;  In  the  matter  of  Smith,  4  Nev.  254. 

*  Blount  -D.  Davis,  2  Dev.  19;  Small  v.  Ilodgcn,  1  Lilt.  IG;  In  the  matter 
of  Smith,  4  Nev.  254;  McClure  v.  Englehart,  17  111.  47 ;  Frizzle  v.  Vcach,  1 
Dana,  211. 

«  Summers T).  Palmer,  10  Bich.  38;  McElmurry  c.  Ardis,  3  Strobh.  212. 

'  Swink  V.  Tliompson,  31  Mo.  33G. 


THE   DEED.  2G5 

the  sheriff  to  the  assignee  will  be  valid.  ^  So,  the  purchaser 
may  assign  the  shei'ifi''s  certificate  of  purchase  where  the  prac- 
tice is  to  give  certificates,  and  the  deed  may  be  made  to  the 
assignee  thereof. - 

§  7GG.  But  a  recital  of  such  assignment  in  the  sheriff's 
deed  is  o\\\y  prima  facie  evidence  thereof,  it  being  the  act  of 
a  third  person  and  not  of  the  sheriff.^ 

§  767.  And  though  the  transfer  or  assignment  of  the  slieriff 's 
certificate  be  so  defective  that  a  deed  to  the  assignee  could  not 
be  coerced  from  the  officer,  yet  if  he  execute  a  deed  in  pursu- 
ance thereof  to  the  assignee,  the  deed  will  be  good.*  The 
assisrnee  of  the  certificate  under  the  slieriff 's  sale  is,  in  law, 
the  assignee  of  the  original  party  defendant  to  the  execution.^ 
It  may  be  enforced  in  equity. ° 

§  708.  A  sheriff's  deed  to  two  persons  for  land  sold  to  one 
of  them  as  nominal  purchaser,  if  in  all  other  respects  sufficient, 
will  pass  the  title  to  both  the  grantees  in  common.'^ 

III.     When  to  le  Made. 

§  700.  If  by  law  there  is  no  redemption,  then  it  follows 
that  the  deed  is  due  on  payment  of  the  purchase  money,  (and 
confirmation,  if  the  latter  is  required.)  Payment  is  to  be  made 
at  once.  The  deed  is  then  to  be  delivered  within  a  reasonable 
time;  that  is,  so  soon  as  it  can  conveniently  be  made. 

§  770.  But  if  there  be  redemption,  then  the  ordinary  and 
most  general  practice  is  to  give  the  buyer  a  certificate  of  sale 
showing  his  right  to  a  deed  at  the  end  of  the  redemption  term, 
if  the  land  be  not  redeemed. ^ 

'  Matthev,-s  v.  Clifton,  13  S.  &  M.  830;  Eleringer  v.  Moriart^v,  10  Iowa,  78; 
Brooks  V.  Ratcliff,  11  Ircd,  321;  Carter  v.  Spencer,  7  Ired,  14. 

2  3IcClure  v.  Engleliart,  17  111.  47;  Summers  v.  Palmer,  10  Rich.  38; 
Eleringer  v.  Moriarty,  10  Iowa,  78;  In  the  matter  of  Smith,  4  Nev.  254. 

3  Stafford  v.  Williams,  13  Barb.  240. 

*  jAIcClure  v.  Englchart,  17  111.  47;  U.  S.  Bank  «.  Voorhces,  1  McLean, 
221 ;  In  the  matter  of  Smith,  4  Nev.  254. 

6  McCready  v.  Brisbane,  1  N.  &  INI.  104;  Brooks  v.  Katcliff,  11  Ircd,  321 ; 
In  tlic  matter  of  Smith,  4  Nev.  254. 

«  Whipple  V.  Farrar,  3  ]\Iich.  (Gibbs)  430. 

'  Frizzle  V.  Vcach,  1  Dana,  211. 

«  4  Kent,  Com.  431. 


266  JUDICIAL   AND   EXECUTION    SALES. 

§  771.  Where  the  hxw  calls  for  such  practice,  a  deed  niadc 
before  the  term  of  redemption  expires  is  void.^ 

§  772.  In  Tennessee,  however,  it  is  holden  that  the  sheriff 
may  make  the  deed  at  once,  although  there  be  redemption,  and 
that  the  purchaser  is  in  tlie  meantime  entitled  to  possession, 
but  must  account  for  rents  and  jDrofits  if  the  premises  arc 
redeemed.- 

§  773.  But  if  confirmation  is  by  law  required,  as  is  the  case 
in  some  of  the  states,  then  the  deed  cannot  be  made  under  any 
circumstances  until  the  sale  is  confirmed,  nor  can  the  certili- 
cate.2     In  such  cases  the  sale  is  quasi  a  judicial  one. 

§  774.  If  the  plaintiff  be  the  purchaser,  he  need  only  pay 
the  costs  and  fees  which  are  going  to  others  than  himself,  and 
may  discharge  the  purchase  money  by  receipting  the  same  on 
the  execution.  He  is  not  bound  to  pay  it  to  the  officer  unless 
there  be  other  liens  or  conflicting  claims  as  to  priority.'^ 

§  775.  Tliough  the  deed  be  dated  anterior  to  the  time  at 
which  the  right  of  redemption  expires,  yet  if  not  delivered 
until  that  time,  it  will  be  valid.  The  delivery  is  the  true  date, 
and  if  the  contrary  be  not  shown  it  is  presumed  to  have  been 
delivered  at  the  proper  time.^ 

§  776.  The  officer  cannot  j)ass  the  title  without  actual 
receipt  of  the  purchase  money,  as  by  charging  himself  v;ith 
the  amount  bid.'' 

lY.     What  Passes  uy  it. 

§  777.  Not  only  the  land  itself  passes  by  the  deed,  if  valid, 
but  also  such  covenants  of  title  as  run  with  the  land  by  ordiuary 
conveyance,  also  pass  to  the  purchaser  by  the  sheriff's  deed  on 
execution  sale.''     He  gets  the  whole  interest  and  estate  of  the 

'  Gorham  v.  Wing,  10  Mich.  48G;  Gross  ;;.  Fowler,  21  Cal.  392;  Bcrual  v. 
Gliem.  33  Cal.  G08. 
-  Burk  v.  Banli  of  Tennessee,  3  Head.  G8G. 
'  McBain  v.  McBain,  15  Oliio  St.  337. 

*  Fowler  v.  Pearcc,  2  Eng.  28. 

*  Warlield  v.  Woodward,  4  G.  Greene,  38G. 

•  State  v.  Lawson,  14  Ark.  114. 

•  Rawlc.  Covenants  of  Title,  344;  Laport  r.  Todd,  3  Vroom  (X.  J.)  124. 


THE  DEKI).  2G7 

execution  dcl>tor  in  tlic  promises,  including  covenants  of  title, 
if  anj.i  If  the  land  be  redeemed  by  the  debtor,  lie  is  tliereby 
re-invested  with  the  covenants  of  title.^  It  is  to  the  interest 
of  the  debtor  that  tlie  covenants  of  title  should  pass.  Thcj 
enhance  the  value  and  arc  presumed  to  increase  the  price  at 
the  sale.  AVei-e  they  not  to  pass  they  would  become  of  no 
value  to  the  execution  debtor,  he  having  no  longer  any  estate 
in  tlie  land, 

§  778.  There  is  some  diversity  of  opinion  as  to  whether 
growing  crops  will  pass  to  the  purchaser  at  execution  sale. 
"Wlierc  lands  are  sold  subject  to  redemption  the  question  can- 
not well  arise,  for  the  title  remaining,  as  also  the  possession, 
in  the  defendant  during  the  time  allowed  to  redeem  usually 
affords  to  the  execution  debtor  the  oi)portunity  of  securing  his 
growing  crop,  if  any  there  be. 

§  770.  In  Indiana,  where  lands  are  to  be  appraised  and 
must  bring  a  certain  proportionate  part  of  their  appraised 
value,  when  sold  on  execution,  and  there  being  no  redemption 
from  such  sales,  the  question  necessarily  arises  as  to  the  gi-ow- 
ing  crops,  and  the  ruling  is  that  they  pass  with  the  land  to 
the  execution  purchaser. ^  But,  in  Ohio,  under  statutory 
regulations  nearly  similar  to  those  of  Indiana  in  that  res}>ect, 
it  is  held  that  growing  crops,  inasmuch  as  they  are  not 
appraised  with  the  land,  do  not  pass  with  the  land  by  the 
execution  sale.''^ 

§  780.  In  Massachusetts  it  is  held  that  the  execution  pur- 
chaser, if  he  makes  peaceable  entry  into  possession,  becomes 
entitled  to  growing  crops. ^ 

§  781.  The  sheriff's  deed  on  execution  sale  made  to  satisfy 
one  or  more  installments  of  a  judgment  debt,  discharges  the 
lien  of  the  subsequent  installments  and  invests  the  purchaser 
with  the  whole  estate.     lie  is  presumed  to  have  paid,  as  the 

'Rawle,  Covenants  of  Title,  36D,  370;  White  v.  Whitney,  3  Met.  81; 
Laport  V.  Todd,  3  Vroom  (N.  J.)  124. 
'  Rawie,  CJovcnauts  of  Title,  370,  371,  n.;  White  v.  Whitnc}',  3  ]\Ict.  81. 
»  Jones  V.  Thomas,  8  Blackf.  428. 

*  Cassaly  v.  Kliodcs;  Ilouts  v.  Showalter,  10  Ohio  St.  12G. 

*  Nichols  V.  Uewey,  4  Allen,  38G. 


2G8  JUDICIAL   AND   EXECUTION    SALES. 

lu\i^]iC3t  bidder,  tho  full  value  of  tlic  laud,  and  is  entitled  to 
hold  it  clear  of  the  judgment.  ^ 

§  7S2.  It  was  formerly  held  in  Pennsylvania  that  the  sheriff ' :? 
deed,  if  there  were  no  express  understanding  to  the  contrary, 
cut  oif  all  liens ;3  though  in  the  case  cited  this  is  alleged  to  be 
a  rule  of  all  courts,  yet  we  deem  it  to  have  been  so  only  in 
Pennsylvania,  and  there  it  was  by  statute.^ 

§  TS3.  To  remedy  this  judicial  anomoly,  after  the  case  of 
Williams  V.  J^orris,  the  Pennsylvania  act  of  April,  1830, 
relative  to  execution  sales,  was  passed,  and  the  rule  in  that 
state  now  is  that  such  sales  are  sul)ject  to  superior  liens,  except 
such  as  the  law  entitles  to  participate  in  the  proceeds  of  sale* 

§  784.  These  latter,  however,  are  not  cut  off  by  the  sale, 
technically  speaking,  but  are  to  be  satisfied  in  their  order  of 
seniority  out  of  the  fund  arising  from  the  sale.'' 

§  785.  The  deed  on  execution  sale  of  mortgaged  premises, 
on  a  judgment  at  law  and  execution  sale,  for  the  mortgage 
debt,  carries  only  the  mortgagor's  equity  of  redemption,  and 
is  subject  to  the  mortgage  for  the  rest  of  the  mortgage  debt, 
if  sold  only  for  a  part.° 

§  7SG.  Where  judgments  are  liens  the  deed  of  the  sheriff 
relates  back  to  the  date  of  the  judgment  and  carries  title  from 
that  date  against  all  claims  and  liens  junior  thereto.'' 

§  787.  Mere  remarks  of  persons  at  the  sale,  not  given  as 
notice,  will  not  charge  the  purchaser. ^  The  title  passes  only 
by  the  deed.^  Until  then  and  the  end  of  tlie  term  of  redemp- 
tion the  right  of  the  purchaser  is  held  in  abeyance,  and  if 
there  be  redemption,  may  be  discharged  by  payment  of  tho 
redemption  money.  ^ " 

'  Ilcwson  V.  Dj'-gert,  8  Johns.  oo3. 

'  AVilliams  v.  Norris,  2  Rawle,  50;  Zeij^lcr's  Appeal,  Co  Pcnii.  St.  173. 

'  Johnson  v.  Crawlej-,  25  Geo.  31G;  Himter  v.  Watson,  13  Cal.  3G3. 

♦  Ilelfrich  v.  Weaver,  61  Pcnn.  St.  3S5. 
'  Ihul. 

«  Jackson  v.  Hall,  10  Johns.  481. 

'  ]\rcCormick  v.  McMurtrie,  4  Watts,  192;  Marliri  v.  :Martin,  7  Md.  3CS. 

8  Ticket).  Ersick,  2  Rawle,  IGG. 

•  Catlin  V.  Jackson,  8  Johns.  520;  Anthony  v.  Wcsscl,  9  Cal.  103. 
«  Vaughn  v.  Eli,  4  Barb.  159;  Smith  v.  Colvin,  17  Barb.  157. 


THE   DEED.  269 

§  '788.  Tlioiigli  the  levy  and  sale  bo  junior,  yet  tliey  ])ass 
the  title  if  on  a  senior  judgment,  as  against  a  senior  levy  and 
sale  on  a  junior  judgment  where  judgments  are  liens.  ^ 

§  789.  Tliongli  the  execution  sale  and  deed  of  the  mort- 
gagor's equity  of  redemption  passes  the  remaining  right  of 
the  mortgagor,^  yet  if  the  judgment  be  not  a  lien,  and  before 
execution  the  mortgagor  convey  away  his  remaining  right,  or 
equity  of  redemption,  to  a  hona  fide  purchaser,  then  by  execu- 
tion sale  thereof  against  the  mortgagor  nothing  passes,  for 
there  was  no  longer  anything  to  scU.^ 

§  790.  So  if  the  sale  pnr2:)ort  to  be  of  merely  the  equity  of 
redemption  from  a  mortgage,  and  the  mortgage  is  already 
redeemed,  then  nothing  passes  by  the  sale  and  sheriff's  deed, 
for  nothing  remained  to  sell.'^ 

§  791.  M  the  purchaser  takes  nothing  by  his  deed,  owing 
to  the  debtor's  having  no  title,  he  cannot  recover  back  his 
money  from  the  creditor,  but  may,  in  equity,  of  the  debtor,  as 
tlie  amount  went  to  pay  his  debt.^ 

§  792.  If  the  description  of  the  land  is  such  as  to  not 
identify  it,  then  the  deed  is  void,  and  the  purchaser  takes 
nothing." 

§  793.  The  sheriffs  deed  will  not  pass  the  right  to  a  house 
on  the  land  which  another  person  has  a  right  to  take  away,  if 
the  purchaser  buy  with  knowledge  of  such  right;  nor  will  he 
be  entitled  to  damages  for  its  removal.'^ 

§  79-1.  Where  a  vendor  sells  land  on  a  credit,  retaining  the 
legal  title  until  payment,  then  takes  judgmeiit  against  his 
vendee  for  the  purchase  monej-,  and  causes  the  same  land  to 
be  levied  and  sold  generally  on  execution  nnder  such  judg- 
ment, the  purchaser  at  sheriff 's  sale  takes  the  full  legal  and 
equitable  title  to  the  land,  (unless  it  be  subject  to  right  of 

'  3Iarsli!ill  V.  McLean,  3  G.  Greene,  30o;  Rankin  v.  Scott,  12  Wheat.  177. 
-  Dougherty  v.  Liuthicum,  8  Dana,  194. 
= Ibid. 
*  Ibid. 

^  Dunn  u.  Frazicr,  8  Blackf.  433. 

«  Mason  v.  White,  11  Barb.  173;  Glenn  v.  Malony,  4  Iowa,  314;  Eoswortb 
c.  Farcniioltz,  3  Iowa,  84. 
■>  Coleman  «.  Lewis,  27  Penn.  St.  291. 


270  JUDICIAL  A^S'D   EXECUTION   SALES. 

redemption)  leaving  no  interest  whatever,  equitable  or  legal,  in 
either  the  original  vendor  or  his  vendee.^ 

§  705.  There  is  a  forcible  illustration  of  this  principle  in 
the  case  of  The  Pittsburgh  and  iSteuhenville  Railroad  Co.  v. 
Jones,  iiboYQ  cited,  in  which  the  court  say:  " The  vendors  bv 
proceeding  to  sell  the  land  under  execution  issued  thereon, 
elected  to  sell  the  legal  as  well  as  the  Company's  equitable 
estate,  and  the  sale  upon  the  judgment  for  the  purchase  money 
Avas  a  virtual  recision  of  the  contract." ^  In  this  case  the  court 
add,  as  a  conclusion,  that,  "  the  sheriff's  vendees,  therefore, 
took  the  whole  estate  in  the  land — the  Company's  equitable 
interest  under  the  judgment  and  execution  upon  which  the 
sale  Avas  made,  and  the  vendor's  legal  title  in  virtue  of  tlieir 
imj^lied  agreement  to  sell  the  whole  estate  which  they  had 
agreed  to  convey  to  the  company.  As  the  sheriff's  sale  divested 
the  Company's  entire  equitable  estate,  it  follows  that  it  no 
longer  had  any  right  or  interest  in  the  land  whatever."  ^  And 
so  if  a  mortgage  creditor  take  judgment  at  law  for  the  mort- 
gage debt  or  a  part  thereof,  and  cause  execution  to  issue  thereon, 
and  the  mortgaged  premises  to  be  levied  and  sold,  generally, 
and  without  stating  that  the  sale  is  subject  to  the  remainder 
of  the  debt  and  mortgage  lien,  the  execution  purchaser  takes 
the  whole  title  both  of  the  mortgagor  and  the  mortgagee,  and 
acquires  the  property  free  of  the  residue  of  the  mortgage  debt 
and  free  of  the  mortgage  lien.^ 

§  79G.  A  lien  creditor  having  thus  elected  to  enforce  his 
claim,  or  a  part  thereof  at  law,  by  taking  judgment  and  causing 
the  land  subject  to  the  lien  to  be  sold  generally,  and  without 
reservation,  or  as  still  subject  to  the  lien,  and  as  the  property 
of  the  debtor,  will  be,  by  the  principle  of  estoppel,  prevented 
thereafter  from  denying  that  the  complete   title   was  in  the 

'  Pittsburgli  and  Stcubcuville  Railroad  Co.  v.  Jones,  59  Pcnn.  St.  433, 
43G,  437. 

*  Pittsburgh  and  Steubcnville  Railroad  Co.  v.  Jones,  59  Penn.  St.  43G-7; 
Love  ij.  Jones,  4  "Watts,  4G5;  Ilorbach  v.  Riley,  7  Barr.  81;  Bradley  r. 
O'Donnell,  33  Penn.  St.,  281. 

3  Pittsburgh  and  Steubcnville  R.  R.  Co.  v.  Jones,  59  Penn.  St.  430,  437; 
Freeby  v.  Topper,  15  Ohio,  4G7. 

*  Fosdick  V.  Risk,  15  Ohio,  34. 


THE   DEED.  271 

execution  defendant  at  llic  time  of  tlic  sale,  and  estopped  from 
again  subjecting  to  sale  fur  any  nnsatisiied  portion  of  Lis 
claim.  1 

§  797.  But  if  tlic  vendor,  who  still  retains  the  legal  title, 
take  judgment  for  the  unpaid  purchase  money,  and  execute  and 
sell  tlie  mere  equitable  right  of  the  vendee  in  the  premises, 
tiie  sale  v^-ill  not  be  void,  though  the  more  regular  way  is  to  sell 
the  land  itself." 

§  798.  In  Iowa  the  vendor  of  real  estate,  "  when  part  or  all 
of  the  purchase  money  remains  unpaid  after  the  day  fixed  for 
payment  whether  time  is  or  is  not  of  the  escence  of  the  contract, 
may  (by  statute)  file  his  petition  asking  the  court  to  require 
the  purchaser  to  perform  his  contract  or  to  foreclose  and  sell 
his  interest  in  the  property,  and  the  vendee  in  such  proceeding 
is  to  be  treated  as  to  foreclosure  as  a  mortgagee.^  And  the 
vendor  may  have  a  decree  for  rescission  of  the  contract,  or  for 
a  sale  of  the  premises  to  satisfy  the  unpaid  purchase  money 
and  costs  of  suit.  The  same  right  will  follow  the  note  given 
for  the  purchase  money  in  to  the  hands  of  an  assignee  or 
endorsee,  if  transferred  with  the  understanding  that  the  assignee 
should  be  sidjrogated  to  the  benefit  of  the  lien.* 

§  799.  Where  land  is  sold  on  execution,  subject  to  a  vendor's 
lien,  the  purchaser  under  the  execution  sale  stands  in  the 
shoes  of  the  judgment  debtor,  except  that  the  judgment  debtor 
has  a  right  to  redeem  from  the  execution  sale.  If  he  fail  to 
do  so  within  the  time  allowed  for  redemption  by  law,  then  the 
purchaser  may  receive  the  deed  of  the  sheriff  and  redeem  from 
the  lien  of  the  vendor,  and  thus  obtain  complete  title  to  the 
land,  free  alike  from  the  claims  of  the  original  vendor  and  of 
the  execution  debtor.-^ 

'  SimoncVs  Estate,  19  Pcnn.  St.  439;  McGce  ?i.  Mellon,  23  Miss.  585; 
Mahone^'  v.  Iloran,  53  Barb.  29;  Frecby  v.  Tapper,  15  Ohio,  4G7;  Fostlick 
V.  Risk,  15  Ohio,  84;  Pitts,  and  Steu.  R.  R.  Co.  v.  Jones,  59  Penn.  St.  43G; 
Love  V.  Jones,  4  Watts,  4G5;  Ilorbach  v.  Riley,  7  Barr,  81. 

''  Gaston  v.  White,  40  Mo.4SG. 

*  Revision  of  18G0,  Sees.  3G71,  3G72;  Blair  v.  IMarsli,  8  Iowa,  144;  Picrsor 
V.  David,  1  Iowa,  34 ;  Page  v.  Cole,  G  Iowa,  154. 

4  Blair  v.  Marsh,  8  Iowa,  144. 

'  Boudurant  v.  Owens,  4  Bush.  (K}'.)  GG2. 


2i'J  JUDICIAL   AND   EXECUTION   SALES. 

§  SOO.  "Wlicn  linsLand  and  wife  are  seized  of  lands  as 
tenants  of  the  entirety,  a  purchaser  of  the  Imsband's  interest 
therein,  under  execution  at  sheriff's  sale,  cannot,  in  tlie  state 
of  Pennsylvania,  maintain  ejectment  on  his  purchase  for  any 
part  of  the  property.  In  the  hmgnage  of  the  court,  such  ])ur- 
ehaser  "does  not  acquire,  during  the  wife's  life,  any  right  to 
the  possession,  either  jointly  with  her  or  to  her  entire  exclu- 
sion."^ The  husband  and  wife  as  tenants  of  the  entirety  arc 
mutually  seized  of  the  whole;  neitlier  can  alienate  their  inter- 
est without  the  consent  of  the  other."  And  though  the  decision 
in  McCurdyv.  Canning  \?,  mainly  put  upon  the  Pennsylvania 
statute  of  April  11,  184S,  yet,  to  our  mind,  the  same  result 
must  follow  if  the  statute  be  loft  out  of  the  question.  What 
one  cannot  sell  himself  cannot,  on  execution,  be  legally  sold 
for  his  debts. 2     But  tins  case,  which  so  fully  illustrates  this 

'  McCurdy  v.  Canning,  G-i  Pcnn.  St.  39;  French  v.  Mclian,  5G  Penn. 
St.  28C. 

•^  2  Bl.  Com.  182;  4  Kent,  Com.  302. 

3  Gentry  u.  Wagstaff,  3  Dcv.  270;  French  v.  Mehan,  5G  Pcnn.  St.  286. 
TnAYER,  Judge:  "This  was  an  action  of  ejectment.  Tlie  defendants, 
Robert  Canning  and  Eliza,  his  wife,  held  under  a  conveyance  in  fee  made 
to  them  during  their  coveture,  and  the  question  is  whether  the  plaintiffs, 
who  were  purchasers  at  sheriff's  sale  of  the  husband's  interest,  can 
recover  possession  of  any  part  of  the  property  by  this  action.  If  an  estate 
in  lands  be  given  to  the  husband  and  wife,  or  a  joint  purchase  be  made 
by  them  during  coveture,  they  arc  not  properly  joint  tenants,  nor  tenants 
in  common,  for  they  are  but  one  person  in  law,  and  cannot  take  by  moities, 
but  both  are  seized  of  the  entiret}',  iwtoutet  non  2)cr  mi/.  The  consequence 
of  which  is,  that  neither  the  husl)and  or  wife  can  dispose  of  any  part 
without  the  assent  of  the  other,  but  the  whole  must  remain  to  the  siu'vivor. 
2  Bl.  Com.  182.  So  long  ago  as  Doe  v.  Prarratt,  5  T.  R.  652,  Lord  Kkxyon 
remarked:  'It  has  been  settled  for  ages  that  where  a  devise  is  to  the  hus- 
band and  wife  they  take  hy  entireties  and  not  by  moieties,  and  the  husband 
alone  cannot,  by  his  own  conveyance,  without  joining  his  wife,  divest  the 
estate  of  the  wife.'  Tliis  species  of  tenancy  arises  from  the  unity  of  hus- 
band and  wife,  and  it  applies  to  an  estate  in  fee  for  life  or  for  years.  The 
same  words  of  conveyance  which  would  make  two  other  persons  joint 
tenants  will  make  the  husband  and  wife  tenants  of  the  entirety.  Joint 
tenants  are  each  seized  of  the  whole  and  not  of  undivided  moieties.  Of 
such  an  estate  Montague,  C.  J.,  says,  in  Plowden,  58:  'The  husband  has 
the  entire  use  and  the  wife  has  the  entire  use,  for  there  are  no  moieties 
between  husband  and  wife.'  The  attainder  of  the  husband  does  not 
affect  the  wife's  estate.    1  Inst.  187,  a.    Nor  can  the  husband  forfeit  on 


THE    DEKD.  ^Ji.> 

interesting  subject,  is  of  sufficient  in:iport;incc  to  warrant  the 
giving  of  the  opinion  of  the  learned  judge  at  lengtli. 

§  SOI.  The  inability  of  either  party  to  convey  -without  the 
other  joining,  has  reference  to  the  whole  and  to  each  one's  moi- 
ety of  the  whole,  for  each  are  seized  of  the  whole,  whicl:  seizin 
continues  in  the  survivor  on  the  death  of  either,  leaving  such 
survivor  the  sole  owner  of  the  whole  fee.  Hence  a  purchase  of 
the  separate  interest  of  either  vests  no  right  in  the  purchaser 
enforceable  during  the  joint  lives  of  the  husband  and  wife, 
and  of  course  not  against  the  survivor  of  the  execution  defend- 

alion  so  us  to  sever  the  tenaney,  'because,'  as  Cruise  says,  'the  whole  of 
it  belongs  to  liis  wife  as  well  as  to  him.'  Tit.  18,  ch.  1.  Nov  is  such  an 
estate  atiected  by  the  statutes  of  partition.  4  Kent's  Com.  303;  Thornton 
r.  Thornton,  3  Hand.  R.  179.  The  act  of  31st  March,  1813,  which  destroyed 
survivorship  between  joint  tenants  in  Pennsylvania,  does  not  apply  to 
entireties  held  by  husband  and  wife.  Robb  v.  Beaver,  8  W.  &  S.  111.  So 
that  this  estate  remains  as  at  common  law,  excepting  in  so  far  as  it  may 
have  been  affected  by  the  act  of  11th  April,  1848,  commonly  called  the; 
]^Iarried  Woman's  Act.  It  would  seem  to  have  followed,  at  common  law, 
from  the  unity  of  husband  and  wife,  and  the  subjection  of  the  hitter  to 
the  former,  that  the  husband  had  the  control  of  the  estate  during  his  life 
and  might  convey  or  mortgage  it  during  that  period.  This  is  conceded 
by  Kennedy,  J.,  in  Fairchild  v.  Chastellux,  1  Barr.  181,  and  decided  in 
Barber  v.  Harris,  15  Wend.  G15;  Jackson  v.  McConuell,  19  id.  175.  If  the 
liusband  might  convey  or  mortgage  it  for  tlie  period  of  his  own  life,  it 
would  seem  to  follow  necessarily  that  it  might  be  taken  in  execution  and 
sold  by  the  sheriff  for  the  same  period,  and  that  a  purchaser  of  such  an 
interest  would  be  entitled  to  recover  the  possession  during  the  life  of  the 
husband  by  an  action  of  ejectment.  But  just  here  the  act  of  11th  April, 
1848,  interposes  an  insuperable  bar  to  such  a  result,  declaring  that '  every 
species  and  description  of  property,  of  whatever  name  or  kind,  which 
may  accrue  to  any  married  woman  during  coveture,  by  will,  descent,  deed 
of  conveyance,  or  otherwise,  shall  be  owned,  used,  and  enjoyed  b}'  such 
married  woman  as  her  own  separate  property,  and  shall  not  be  subject  to 
levy  and  execution  for  the  debts  or  lia])ilities  of  her  husband,  nor  shall 
such  propertj'  be  sold,  convej^ed,  mortgaged,  or  transferred,  or  in  any 
manner  incumbered  by  her  husband  without  her  written  consent  first  had 
and  obtained,  and  duly  acknowledged,  etc'  The  case,  therefore,  stands 
thus:  Here  is  a  married  woman  who  is  neither  a  joint  tenant  or  tenant 
in  common  with  the  husband,  but  who  is  seized  of  the  whole  estate,  and 
with  him  entitled  to  possession  of  the  whole.  If  a  purchaser  of  the  hus- 
band's interest  may  be  put  into  possession  with  her,  what  follow?  This: 
1st.  You  have  destroyed  her  estate  and  turned  her  entirety  into  a  joint 
tenancy  or  tenancy  in  common.  2d.  You  have  deprived  her  altogether  of 
IS  " 


274  JUDICUL   AND   EXECUTION    SAEES. 

ant,  wliose  interest  may  liave  sold  on  execution,  as  sucli  inter- 
est ceases  at  Lis  deatli  and  becomes  sole  in  tlie  surviv^or. 

§S02.  An  casement  incident  to  a  mill  and  to  the  ground 
on  whicli  tlie  mill  is  situated,  for  the  supply  of  water  to  the 
mill,  is  in  connection  with  the  mill  and  premises  a  subject  of 
judgment  lien  and  of  execution  sale.  The  lien  of  the  judg- 
ment covers  the  land  or  premises,  which,  being  the  principal 
thing,  draws  to  it  all  its  incidents  as  appurtenant  thereto. 
Tliey,  together,  constitute  one  whole.  They  pass  togetlier  and 
cannot  be  separately  sold  without  destruction  to  a  great  extent 

the  possession,  because  it  is  not  in  the  nature  of  things  that  she  can  enjoy 
actual  possession  with  a  stranger  as  she  did  with  lier  husband.  3d.  You 
liave  taken  away  her  property  without  lier  consent  and  destroyed  her 
rights,  which  were  protected  by  the  act  of  April  11th,  1848.  She  was 
entitled  to  possession  of  tlie  whole  with  her  husband.  You  propose  to 
give  possession  of  the  whole  with  a  stranger,  a  possession  which  she  can- 
not, and  wliicli  he  probably  would  not,  enjoy.  If  it  should  be  answered 
that  the  property  may  be  rented,  and  a  moiety  of  the  rents  and  profits 
may  be  paid  to  her,  that  is  only  to  say  that  you  may  deprive  her  of  her 
estate  and  give  her  another  of  inferior  value,  a  substitution  which  you 
liave  no  right  to  propose.  The  words  of  the  act  of  1848  are  of  so  compre- 
hensive a  character,  and  its  purpose  to  protect  every  possible  interest  of 
the  wife  is  so  plain,  tliat  we  cannot,  by  any  possible  construction  consis- 
tent with  the  object  of  tlie  Legislature  and  the  language  which  they  have 
used,  except  this  interest  from  its  protection.  These  considerations  lead 
us  to  the  conclusion  that  one  who,  Avithout  the  consent  of  the  wife,  pur- 
chases the  husband's  interest  in  real  estate  in  which  both  husband  and 
wife  are  seized  of  the  entirety,  and  to  the  possession  of  the  whole  of  which 
she  is  entitled  equally  with  him,  does  not  acquire,  during  the  wife's  life, 
any  right  to  the  possession,  either  jointly  witli  her  or  to  her  entire  exclu- 
sion. Practically  these  two  propositions  are  not  alternatives,  but  the  same, 
for  we  can  as  easily  marry  her  to  a  stranger  as  marry  her  possession  to  liis 
without  destroying  her  estate.  The  case  of  Stocbler  v.  Ivnerr,  Watts,  181, 
is  not  in  conflict  with  these  views.  The  point  to  be  determined  here  did 
not  arise  in  that  case,  which  was  decided  twelve  years  before  the  passage 
of  the  Married  Woman's  Act.  In  that  case  the  husband  and  wife  did  not 
hold  by  entireties.  There  was  an  absolute  conveyance  in  fee  simple  to 
the  husband,  coupled  with  a  contemporaneous  agreement,  the  intent  of 
whicli  was  to  control  the  conveyance  and  to  give  the  estate  jointly  to  the 
daughter  of  the  donor  and  her  husband  in  special  tail,  but  it  failed  for 
want  of  apt  words  to  accomplish  the  result,  and  it  was  hekl  that  the  whole 
estate  was  in  the  husband  for  life,  and  that  his  freehold  was  a  legitimate 
subject  of  execution.  Judgment  for  the  defendant  on  the  point  reserved." 
:\IcCurdy  v.  Canning,  04  Penn. 


THE   DEED. 


97r, 


of  tlic  lien  security  of  the  creditor,  and  at  the  same  time 
sacrificing  tlie  property  of  tlie  debtor.  They  arc  rightfully 
sold  together,  and  together  will  pass  to  the  purchaser,  without 
particular  reference  to  the  easement,  and  under  the  general 
description  of  the  premises  by  metes  and  bounds.^ 

Y.     Its  llEaTALS. 

g  S03.  The  deed  of  the  sheriff  need  not  recite  the  execution 
or  otlier  proceedings.  It  is  sufficient  that  they  be  referred  to 
and  identified;  and  then  if  inaccurately,  such  inaccuracy  will 
not  vitiate  the  deed.  The  variance  is  immaterial  so  long  as 
the  origin  of  the  deed  is  clearly  traceable  to  a  proper  source. 
Such  irregularity  can  work  no  injury  to  the  parties  concerned. - 

§  804.  The  recitals  of  the  deed  are  ovdmai-Wj  prima  facie 
true,  so  far  as  relate  to  the  steps  taken  by  the  ofricer,  and  as  to 
the  authority  to  levy  and  sell.^ 

§  805.  It  has  been  held  that  in  their  absence,  proof  of  notice 
of  sale  must  be  made  to  enable  the  purchaser  to  enforce  the 
deed.^     But  the  general  rule  is  to  the  contrary. -"^ 

§  80G.  In  some  states  the  recitals  in  the  sheriff's  deed  are 
evidence  by  statute.^  But  if  the  judgment  be  not  referred  to 
in  the  recitals,  then  to  enforce  the  deed  the  existence  of  the 
judgment  must  be  made  to  aj)pear  by  other  evidence.' 

'  Morgan  v.  Mason,  20  Ohio,  401. 

-  Humphry  v.  Bccson,  1  G.  Greene,  199,  214;  Perkins  v.  Dibble,  10  Ohio, 
433;  Armstrong  v.  McCoy,  8  Ham.  138;  Iluggins  v.  Kctchum,  4  Dev.  and 
Batt.  414;  Cherry  v.  AYoodhird,  1  Ired.  438;  Driver  v.  Spence,  1  Ala.  540; 
Jackson  v.  Jones,  9  Cow.  182 ;  Sneed  v.  Reardon,  1  A.  K.  Marsli,  217 ;  Jack- 
son V.  Streeter,  5  Cow.  529;  Welsh  v.  Joy,  13  Pick.  477;  Craig  v.  Vance,  1 
Overt.  209;  Jackson  v.  Pratt,  10  Johns.  381 ;  McGuire  v.  Kouns,  7  Monv. 
386;  Read  ?3.  Heasley,  9  Dana.  324;  Wing  v.  Burgess,  13  Maine,  111; 
Philips  V.  Coffee,  17  111.  154;  Jackson  v.  Roberts,  7  Wend.  83;  Harrison  v. 
Maxwell,  2  IST.  &  M.  347;  Hines  v.  Scott,  11  Penn.  St.  19;  Loomis  v.  Riley, 
24  111.  307;  Buchanan  v.  Tracy  45  Mo.  437. 

3  Orsborne  v.  Tunis,  1  Dutcli.  033,  (562;  Hardin  v.  Cheek,  3  Jones.  Law. 
(N.  C.)  135;  Kelly  v.  Green,  53  Penn.  St.  302. 

*  Orsborne  v.  Tunis,  1  Dutch.  G33,  662. 
»  Perkins  v.  Dibble,  10  Ohio,  433. 

*  Jourdan  v.  Bradshaw,  17  Ark.  lOfl. 

'  Jourdan  v.  Bradshaw,  17  Ark.  100 ;  Bcttisen  v.  Budd,  17  Ark.  540. 


Jib  JUDICIAL   AXD   EXECUTION    SALES. 

§  807.  In  California  the  recitals  in  the  deed  are  not  evi- 
dence of  their  own  truth  as  against  strangers  to  the  proceed- 
ings claiming  adversely  thereto.^ 

§  808.  In  Illinois  a  misrecital  of  the  name  of  the  judgment 
plaintiff,  asJCohn  II.,  ior  Jacob  H.,  is  fatal  to  the  deed  without 
more;  but  is  holden  to  he  open  to  remedy  by  other  proof, 
showing  the  variance  to  he  matter  of  mistake.- 

YI.     Its  Ivelatiox. 

§  SOi>.  Where  by  law  the  judgment  is  a  lien  on  the  land, 
the  deed,  on  execution  sale  has  relation  back  to  the  time  of  the 
judgment,  so  as  to  avoid,  as  against  the  execution  purchaser, 
all  intermediate  liens  and  alienations.  ^ 

§  810.  "V\niere  the  judgnient  is  not  a  lien,  and  there  has 
been  no  attachment  of  the  proj^eily  sold  on  execution  tlie  deed 
relates  back  only  to  the  levy,*  or  to  the  test;^  or,  as  in  some 
of  the  states,  to  the  delivery  of  the  execution  to  the  officer,^ 
us  may  be  regulated  by  the  local  authority  of  the  several  states 
wherein  there  is  not  a  judgment  lien.  Tlie  rulings  in  several 
of  these,  as  will  be  seen  by  the  above  references  are  variant. 
Eut  if  the  proceedings  were  by  attachment,  then  the  relation 
will  be  to  the  date  of  the  attachment  and  levy,  in  some  cases 
from  delivery  to  the  officer.''^ 

§  811.  In  Illinois  there  is  a  statute  requiring  a  certificate 
of  levy  to  be  filed  in  the  recorder's  ofiice  in  the  count}'  where 
the  lands  levied  on  lie  whenever  levy  is  made  by  the  sheriff 
of  an  execution  cmcnating  from  a  different  county,  and  making 

'  Donahue  v.  McXulty,  24  Cal.  411. 

-  Johnson  v.  Adlemau,  35  111.  2G5. 

"  Bac.  Abt.  Execution,  735;  McCormack  v.  McMurtrie,  4  Watts,  192; 
Smith  ».  Allen,  1  Blackf.  22;  Bidaie  v.  Bryan,  5  Ohio,  48,55;  Kirk  «.  Von- 
berg,  34  111.  440,  448. 

*  Reichart  v.  McClure,  23  111.  51G;  McClure  v.  Euglehard,  17  III.  47. 

*  Winstead  ■».  Winstcad,  1  Ilayw.  243;  McLain  v.  Upchureh,  2  Morj)!). 
353;  Gilky  v.  Dickenson.  2  Hawks,  341 ;  Lewis  v.  Smith,  2  S.  &  R  157. 

«  Savage  ■».  Best,  3  How.  Ill ;  BankU.  S.  x.  Tyler,  4  Pet.  3G6,  383 ;  JSIillion 
V.  Riley,  1  Dana,  3G0. 

''  Shirk  V.  Wilson,  13  Ind.  129;  Cockney  v.  Milne,  16  Md.  200;  McMillan 
V.  Parsons,  7  .Jones,  Law.  (N.  C.)  1G3. 


THE   DEED.  1!  i  i 

Bucli  certificate  ^vllere  filed  notice  of  such  levy  to  all  subsequent 
purcliasers,  and  declaring  that  before  such  certificate  is  so  filed 
the  levy  shall  be  of  no  effect  as  to  subsequent  creditors  and 
honajide  purchasers.  But  if  such  certificate  be  filed,  then  a 
sherifT's  deed  on  execution  sale  nnder  such  levy  bears  relation 
as  to  title  to  the  date  on  which  such  certificate  is  filed. ^ 

VI  r.     PiuoKriT. 

§  S12.  In  Uaiildn  v,  Scott,  the  Supreme  Court  of  the 
United  States,  (Marshall,  Justice,)  say:  "The  j^i'hiciplc  is 
believed  to  be  universal  that  a  jDrior  lien  gives  a  prior  claim, 
which  is  entitled  to  prior  satisfaction  out  of  the  subject  it. 
binds,  unless  the  lien  be  intrinsically  defective,  or  be  displaced 
l)y  some  act  of  the  partj'  holding  it  M-hich  shall  post2:)one  him 
in  a  court  of  law  or  equity  to  a  subsequent  claim." 

§  813.  Therefore  it  follows  from  this,  as  was  holden  in  that 
case,  that  a  junior  sheriff's  sale  and  deed  on  an  execution  from 
a  senior  judgment,  where  judgments  are  liens,  gives  title  to  the 
jmrchaser  against  a  senior  execution  sale  and  deed,  on  a  junior 
judgment.- 

§  814.  The  rule  is  not  only  "nniversiil,"  but  is  as  old  as  the 
law  of  liens  itself,  and  is  inseparately  an  essential  -ptxrt  of  it. 
Priority  is  the  very  essence  of  the  lien,  and  is  its  primary 
object. 

§  815.  It  is  holden  by  many  authorities,  that  where  the 
plaintiff  in  execution  becomes  the  purchaser,  he  will  not  be 
])rotected  against  an  unrecorded  deed  from  the  debtor  for  the 
same  land  older  than  his  lien,  as  for  want  of  notice  of  such 
deed,  for  that  he  has  parted  Avith  no  money,  but  merely 
receipted  the  writ.  AVhereas,  as  is  alleged,  to  place  himself  in 
the  position  of  bona  Jide -pwvcha&cv  he  must  have  actually  made 
payment.^     But  even  the  ground  of  this  re<asoning  is  untrue 

'  McClurc  V.  Englcliart,  17  111.  47. 

-  Raukin  v.  Scott,  12  AYlicat.  177;  Kirk  r.  Yonberg,  3-i  111.  440;  Rogers 
t.  Dickey,  1  Gilm.  63G;  Marshall  v.  McLean,  3  G.  Greene,  303. 

=•  Williams  v.  Ilollinsworth,  1  Strob.  Eq.  103;  Freeman  v.  Ilill,  1  Dcv.  & 
Batt.  Eq.  389;  Polk  v.  Gallant,  ib.  895;  Rutherford  «?.  Greed,  3  Ired.  E. 
1232;  Frccnian  c.  Mcbaue,  2  Jones  Eq.  44. 


278  JLDICLVL    AXD    EXECUTION    S.VI,ES. 

in  part,  for  lie  must  at  all  events  pay  money  in  discharge  of 
costs  and  charges  of  sale. 

§  816.  Under  the  statute  of  Iowa,  declaring  that  '•  no  instrn- 
ment  aifecting  real  estate  is  of  any  validity  against  subsequent 
purchasers  for  a  valuable  consideration  M'ithout  notice,  unless 
recorded  in  the  office  of  the  recorder  of  deeds  of  the  county  in 
which  the  land  lies,"^  it  is  holden  that  a  honafidd  purchaser  at 
sheriff's  sale  of  lands  takes  the  property  discharged  in  law,  of 
all  equities  arising  under  a  unrecorded  deed  of  which  he  had  no 
notice;  and  that  a  judgment  creditor  who  buys  in  good  faith 
at  such  a  sale,  is  a  honafide  purchaser  in  that  respect,  and  so 
is  made  other  of  the  states. ^  Kot  so,  however,  if  the  purchase 
in  some  with  notice  of  the  deed.^ 

§  817.  Though  there  is  a  conflict  in  the  rulings  on  this 
subject,  more  especially  in  reference  to  registry  acts  in  some 
of  the  states,  yet  the  weight  of  authority  is  that  third  persons, 
honafide  purchasers  at  sheriff's,  sale,  who  have  paid  the  j)ur- 
cliase  money  without  notice  of  an  unrecorded  deed,  or  equity, 
will  be  protected  against  the  same.^  Latterly,  decisions  have 
gone  far  towards  extending  the  same  rule  to  purchases  by 
execution  plaintiffs.  In  Wall^^e}'  r.  Elston,  the  supreme  court 
of  Iowa  adjudge  the  same  protection  at  law  to  such  purchaser 
as  to  third  persons,  and  say,  "  the  only  question  presented  by 
the  foregoing  facts  is,  whether  a  judgment  creditor  purchasing 
at  sheriff's  sale  takes,  as  in  this  case  the  lot  of  ground  dis- 

'  Revision  of  18G0,  sec  2220. 

-Walker  v.  Elston,  21  Iowa,  529;  Butterfiekl  t\  Walsli,  21  Iowa,  97; 
Vance  v.  Bergen,  Ifi  Iowa,  555;  Evans  v.  ]McGlosson,  18  Iowa,  150;  Bonn- 
ton  v.  Winslow,  37  Penn.  St.  315. 

^  Hoy  v.  Allen,  27  Iowa,  208. 

■*  Leading  Cas.  in  Eq.  Pt.  1,  75;  Jackson  v.  CliamberJain,  8  Wend.  620, 
Parker  v.  Pierce,  10  Iowa,  243 ;  Waldo  v.  Kussell,  5  Mo.  387 ;  Denn  t\  Rick 
man,  1  Green,  43;  Scribner  v.  Lockwood,  9  Ohio,  184;  Ins.  Co.  v.  Ledyard, 
8Ala.  8G0;  Orth  f.  .Jennings,  8  Blackf.  420;  Mann's.  Appeal,  1  Barr.  24; 
Ileister  «.  Foster,  2  Bin.  40;  Woods  r.  Chapin,  3  Kern.  509;  "Williams  r. 
Janson,  5  Harris,  407 ;  Walker  v.  Elston,  21  Iowa,  529 ;  Butterfield  r.  Welch, 
21  Iowa,  97;  Vanice  v.  Bcrger,  10  Iowa,  555;  Evan  v.  Glasson,  18  Iowa. 
150 ;  Norton  v.  Williams,  9  Iowa,  529 ;  JNIassey  ■«.  Westcott,  40  111.  100 ;  Fos- 
dick  v.  Barr,  3  Oliio  St.  471 ;  Stewart  v.  Freeman,  22  Penn.  St.  120;  Goup  v. 
Garticr,  35  Penn.  St.  130;  3IcFadden  v.  Worthington,  45  111.308. 


THE   DKKD.  279 

cLarged  of  all  equities  arising  under  an  unrecorded  deed  of 
whicli  he  had  no  notice  actual  or  constructive  at  tlie  time  of  the 
purchase.  AVe  have  several  times  held  that  he  did,  and  would 
be  protected  as  an  ordinary  honafde  purchaser  under  section 
2220  of  the  revision."! 

§  818.  But  the  mere  lien"  of  a  judgment  will  not  in  itself, 
before  sale,  override  a  prior  unrecorded  deed  of  conveyance  or 
mortgage,  so  as  to  confer  title  on  an  execution  purchaser,  who 
afterwards  buys  under  it  with  notice  thereof,  actual  or  con- 
structive.^ If  the  deed  or  mortMo-e  be  recorded  before  sale 
the  purchaser  will  be  legally  affected  with  notice.* 

§  810.  Where  a  judgment  is  rendered  against  a  mortgage 
debtor  subsequent  to  the  date  of  the  mortgage  deed,  and  such 
mortgage  deed  is  regularly  executed  and  recorded  prior  to 
execution  sale  upon  the  judgment,  a  purchaser  at  the  execution 
sale  takes  notliing  but  the  debtor's  mere  right  of  redemption 
from  the  mortgage;  and  such,  too,  is  the  general  rule,  thougli 
the  mortgage  deed  be  not  recorded;  iwovided  the  purchaser  at 
the  execution  sale  has  notice  of  the  mortgage.^* 

^  Walker  d.  Elston,  21  Iowa,  531 ;  Masscy  v.  TYestcott,  49  III.  1(!0;  Evans 
v.  JMcGlasson,  18  Iowa,  151. 

'^  For  a  liexi  is  not  an  interest  in  the  property.  It  is  merely  a  right  to 
make  the  money  out  of  it;  until  enforced  b}^  sale  and  deed  no  control 
exists  over  the  property  in  the  owner  of  the  judgment  lien.  Conrad  v. 
Atlantic  Ins.  Co.  1  Pet.  448;  Miller  «.  Sherry,  2  Wall.  244. 

^  As  is  said  by  Thompson,  Justice,  in  Grencmcyer  v.  Southern  Mutual 
Insurance  Company :  "  A  judgment  is  not  a  general  and  not  a  specific  lien. 
If  there  be  personal  property  of  the  debtor  it  is  to  be  satisfied  out  of  that. 
If  there  be  not,  then  it  is  a  lien  on  all  bis  real  estate  without  discrimina- 
tion, and  hence  the  plaintiff  is  not  interested  in  the  property  as  propertj', 
but  only  in  his  lien.  The  judgment  creditor  has  neither ^'i/s  in  re  nor  ad 
■rem,  as  regards  the  defendant's  property.  He  has  a  lien,  and  the  law  gives 
a  right  to  satisfaction  out  of  the  propertj-,  and  that  is  all."  (G2  Peun.  St. 
:)43.)  See,  also,  Conrad  v.  Atlantic  Ins.  Co.  1  Pet.  384;  Kemper  v.  Bavej-,  5 
McLean,  507;  Schaffer  f.  Cadwallader,  12  Casey,  126;  Thelusson  v.  Smith, 
2  Wheat.  390. 

*  Chipman  v.  Coats,  20  Iowa;  Valintine  «.  Havener,  20  Mo.  133,  288; 
Norton  «.  Williams,  9  Iowa,  528;  Parker  v.  Pierse,  16  Iowa,  237;  Bell  v. 
Evans,  10  Iowa,  353;  Welton  ».  Tizzard,  15  Iowa,  495;  Evans  v.  McGlas 
son,  18  Iowa,  151;  Hoy  v.  Allen,  27  Iowa,  208;  Potter  v.  McDowell,  40 
:Mo.  93;  Thomas  v.  Kennedy,  24  Iowa,  397. 

"  Hubble  V.  Vaughn,  42  ]\io.  138. 


2S0  JUDiaAL   AND   EXECUTION    SALES. 

§  S20.  ]jut  if  tlicrc  be  nothing  of  record  to  show  a  prior 
mortgage  or  other  conveyance  by  the  judgment  debtor  older 
than  the  judgment  at  the  time  of  execution  sale  and  j)ayment 
of  the  purchase  money,  and  the  purchaser  is  without  notice  of 
such  2^1'ior  mortgage  or  deed,  then  the  purchase  under  sheriff 
sale  prevails  against  such  prior  conveyance. ^ 

§  521.  In  Oliio,  however,  nnder  the  statute  of  Feb.  22, 1831. 
which  gives  force,  as  betAveen  the  mortgagee  and  third  persons, 
to  mortgages  only  from  the  time  they  are  recorded,  it  is  holdcu 
that  a  purchaser  under  execution  sales,  theugh  buying  with 
knowledge  of  an  older  unrecorded  mortgage,  and  though  he 
be  the  j^laintiff  in  execution,  takes  a  title  to  the  land  that 
overrides  the  lien  of  an  unrecorded  mortgage  or  assignment 
to  secure  a  lona  Jide  debt;  and  this,  too,  where  the  judgment 
was  iunior  in  date  to  the  asslo-nment  or  morts^as^e  deed. 

§  822.  The  Ohio  courts  hold  "  that  such  unrecorded  instru- 
ments arc  good  and  effectual  between  the  parties,  bnt  entirely 
nugatory  as  to  third  parties,  both  at  law  and  in  equity,  until 
they  are  recorded."  The  same  ruling  exists  in  Ohio  as  between 
two  mortgages  where  one  is  recorded  and  the  other  not.  Tlic 
first  of  record  has  priority." 

'  3I;isscy  V.  "Wcstcott,  40  Illinois,  IGO.  In  this  case,  involving  a  purchase 
by  judgment  creditor,  the  supreme  court  of  Illinois  say:  "Under  our 
statutes  a  purchaser  and  a  judgment  creditor  having  a  lien,  stand  upon 
the  same  equity,  and  this  has  been  so  held  ever  since  the  act  of  1833,  and 
the  case  of  Martin  v.  Drj'den,  1  Gilm.  21G.  The  same  remark  applies  to 
another  point  made  by  appellant's  counsel,  to  "wit:  That  the  lien  of  a 
judgment  attaches  only  to  whatever  interest  in  the  land  the  judgment 
debtor  maj',  in  fact,  have,  and  does  not  take  precedence  of  a  prior  pur- 
chaser claiming  luider  an  unrecorded  deed.  This  has  been  so  held  in  some 
of  the  states,  but  under  our  act  of  1833,  it  is  the  nettled  laic  of  this  steite  that 
a  judgment  lien  attaches  to  whatever  interest  in  real  estate  the  records 
disclose  in  the  judgment  debtor,  in  the  absence  of  actual  notice  fron^. 
other  sources."     Massey  «.  Westcott,  40  111.  103. 

-  Fosdick  V.  Earr,  3  Ohio  St.  471,  57.");  Holloday  r.  Tlie  Franklin  Bank, 
IG  Ohio,  533;  White  v.  Denman,  IG  Ohio,  59;  Jackson  v.  Luce,  14  Ohio, 
514;  Mayham  v.  Coombs,  14  Ohio,  428;  Stancel  v.  Roberts,  13  Ohio,  148. 
Before  the  recording  act  of  1831,  the  recording  of  mortgages  was  placed 
on  the  same  footing  as  absolute  deeds;  heuce  the  rulings  were  diflcrent. 
Fosdick  r.  Barr,  above  cited;  White  r.  Denman,  1  Ohio  St.  110;  Stancel 
V  Roberts,  13  Ohio,  148. 


TlIK   DEED,  2S1 

§  823.  In  Ohio  tlic  riglits  of  an  execution  pnrcliaser  at 
sheriff's  sale,  Lear  relation  by  statute  as  against  a  dormant  or 
unrecorded  equity  to  the  date  of  the  sheriff's  sale,  and  the 
deed,  when  executed,  confers  title  as  against  all  sucli  equities 
from  the  date  of  the  sale  and  not  from  its  own  date;  therefore, 
where  such  equity  is  unknown  to  the  purchaser  at  the  time  of 
the  execution  sale,  his  deed  from  the  sheriff,  though  of  subse- 
quent date,  will  override  such  equity,  although  notice  thereof 
be  imparted  to  the  purchaser  after  the  day  of  sale  and  before 
tlic  delivery  of  the  deed  to  him  by  the  sheriff  The  court  say: 
"  The  deed  executed  at  a  subsequent  date  has  relation  back  to 
that  date,  and  is  as  effectual  as  if  then  made.''^ 

§  824.  An  execution  purchaser  wdio  has  not  paid  tlie  pur- 
chase money  is  not  a  lona  fide  purchaser.- 

§  825.  Ijut  when  the  purchase  money  is  paid,  the  sale  will 
confer  a  prior  equity  over  an  assignment  of  the  land  to  a 
creditor  to  secure  a  prior  debt,  though  the  assignment  be  ante- 
rior in  date  to  the  judgment. ^ 

§  820.  As  between  executions  euianating  from  several  lien 
'udirments  of  even  date,  the  writ  first  levied  is  liolden  to 
^.btain  priori ty.^  So,  as  a  sequence,  if  the  judgments  be  not 
iicns.^ 

§  827.  AVhen  an  execution  purchaser  buys  land  subject  to 
a  mortgage  debt,  and  afterwards  sells  and  conveys  the  same  to 
a  grantee,  who  takes  with  knowledge  of  the  mortgage  and 
who  retains  out  of  the  purchase  money  a  sum  sufficient  to 
discharge  the  mortgage,  with  a  view  to  meet  the  same  and 
jn-otect  himself  against  it  by  paying  it  off,  he  is  thereby  estop- 
ped to  deny  that  the  execution  sale  was  made  subject  to  the 
mortgage  debt.'^ 

§  828.     And   in   the   sauic  state   a   lona  fide  purchaser  at 

1  Oviati  V.  Brown,  14  Ohio,  28.j. 
-  Swazey  -j.  Burke,  13  Pet.  11. 

=  Fosdick  V.  Barr,  3  Ohio  St.  471;  Stewart  v.  Freeman,  22  Pcnn.  St.  120. 
^  Rockhill  V.  llanna,  15  How.  189;  Adams  v.  Dyer,  8  Johns.  350;  ^\'atcr 
man  t\  Haskin.^  11  Johns.  228;  Bruce  v.  Yoglc,  38  Mo.  100. 
''  Lathrop  «.  Brown,  23  Iowa,  40. 
Crooks  V.  DouL^hiss,  50  Penn.  St.  51. 


2S2  JUDICIAL   AXD    EXECLTIOX    SALi:S. 

slicriif's  sale,  on  a  junior  judgment,  will  take  priority  over 
the  lien  of  an  older  judgment  marked,  of  record  "  satisfied," 
although  not  satisiied  in  point  of  fact.  The  record,  as  to  the 
subsequent  execution  purchaser,  is  verity.^ 

§  829.  If  two  mortgages  be  given  for  the  purchase  money 
of  lands  in  one  of  the  same  transaction,  and  of  one  date,  both 
being  recorded  on  the  same  day  and  M'ithin  the  time  required 
by  law,  their  equities  are  equal  and  their  liens  are  cotempora- 
neous;  no  priority  is  gained  by  either  over  the  other.  A 
sheriff's  sale  of  the  whole  property  on  either  extinguislies  the 
other.  - 

§  830.  But  if  one  of  the  mortgages,  though  expressed  to  be 
for  a  part  of  the  purchase  money,  be  in  reality  the  fruits  of  a 
different  transaction,  then  it  will  become  secondary  to  the  other 
in  point  of  priority,  and  a  sheriff's  sale  in  foreclosure  of  the 
same  will  not  divest  or  extinguish  the  other. 

§  831.  A  sheriff's  deed  for  lands  on  execution  sales,  in 
Pennsylvania,  comes  within  the  registry  acts,  and  is  over- 
reached by  a  deed  for  the  same  lands  executed  by  the  debtor 
in  Ohio,  according  to  the  laws  of  Pennsylvania,  and  recorded 
in  the  latter  state  within  the  time  allowed  for  recording  foreign 
deeds,  although  the  judgment  under  which  the  sale  by  the 
sheriff  was  made  was  rendered  before  the  recording:  of  the  deed 
made  in  Ohio,  and  although  the  sheriff's  deed  was  recorded 
within  the  time  allowed  by  the  laws  of  Pennsylvania  for 
recording  domestic  deeds. 

§  832.  The  deed  of  the  debtor  made  in  Ohio  prior  to  the 
rendition  of  the  judgment  in  Pennsylvania  left  no  interest  in 
the  land  in  the  debtor  to  which  the  judgment  lien  could 
attach. 3     The  estate  had  passed  out  of  the  judgment  debtor 

1  Coyne  v.  Souther,  Gl  Penn.  St.  455,  458. 

-  Duncan  v.  American  Life  Ins.  Co.  52  Penn.  St.  253,  25G.  In  the  case 
above  cited  from  53  Penn.  St.  tlie  court  iiold  this  language :  "And  the 
doctrine  is  unquestionably  true  that  if  purchase  money  be  secured  by  two 
mortgages,  and  both  are  recorded  on  the  same  day,  and  within  sixty  days 
of  their  date,  their  liens  are  contemporaneous,  and  no  priority  of  one  over 
tlic  other  can  be  predicated;  and,  of  course,  a  sherilT's  sale  on  either 
divests  the  otlier." 

^  llultz  V.  Hackley,  G3  Penn.  St.  142,  144.    The  court,  in  this  case,  say: 


TUE   DEED.  2S3 

to  Lis  grantee  by  deed,  and  this  deed  being  recorded  in  dnc 
time  was  not  fraudulent  as  to  tlie  execution  purchaser. 

YIII.     Eegistkation. 

§  833.  Sheriff's  deeds,  on  execution  sales,  are  witliin  the 
provisions  of  recording  acts.^  The  purchaser  is  bound  by  and 
entitled  to  claim  all  the  provisions  thereof.^  Therefore,  in 
those  states  where  priority  in  recording  gives  priority  of  title, 
an  execution  purchaser  who  first  records  his  deed,  within  the 
law,  gains  thereby  the  same  preference  as  if  the  deed  was  from 
the  debtor  himself.^ 

§  834.     Such  purchaser  is  no  more  chargeable  by  a  deed 

"As  it  (the  (Iced  made  in  Ohio)  was  made  and  delivered  before  the  recov- 
ery of  the  plaintiff's  judgment,  it  vested  in  the  grantee  a  valid  and 
absolute  title  to  the  lot,  which  was  not  affected  by  the  judgment,  for,  at 
the  time  of  its  recovery,  the  grantor  had  no  interest  in  the  premises  to 
which  its  lien  could  attach,  and  consequently  no  title  passed  to  the  plain- 
tiff' under  the  sheriff's  sale.  It  still  remains  in  the  grantee  unless  he  has 
lost  it,  as  contended,  by  his  laches  in  not  recording  his  deed  within  the 
time  allowed  by  law,  in  order  to  render  it  valid  and  operative  against  the 
plaintiff".  As  a  sheriff's  vendee  is  a  purchaser  for  a  valuable  consideration 
within  the  meaning  of  the  recording  acts,  he  is  protected  by  them.  If, 
therefore,  the  defendant  failed  to  record  his  deed  in  proper  time,  it  must 
be  adjudged  fraudulent  and  void  against  the  subsequent  deed  of  the  sheriff 
under  which  the  plaintiff"  claims,  and  which  was  registered  in  the  protho- 
notary's  office  before  the  defendant's  deed  was  recorded.  If  the  defend- 
ant's  deed  had  been  executed  and  acknowledged  within  the  state,  then 
under  the  provisions  of  the  first  section  of  the  recording  act  of  18th 
]SIarch,  1775,  it  would  have  been  his  duty  to  record  it  within  six  months 
after  its  execution,  and  the  omission  would  have  rendered  it  fraudulent  and 
void  as  against  the  plaintiff.  But  as  we  have  seen  his  deed  was  executed 
and  acknowledged  in  Ohio,  and  if  it  is  governed  by  the  second  section  of 
the  act,  he  had  twelve  months  within  which  to  record  it  before  incurring 
the  penalty  of  having  it  adjudged  fraudulent  and  void  against  a  subse- 
quent purchaser  whose  deed  might  be  first  recorded." 

'  Hoosier  v.  Hall,  2  Carter,  556;  3  Bouvier,  58,  n.;  Massey  v.  Thompson, 
2  N.  &  M.  347 ;  Jackson  v.  Terry,  13  Johns.  471 ;  Lessee  of  Wallace  v.  Law- 
rence, 1  Wash.  C.  C.  11.  503;  Walker  &  Elston  v.  Green,  21  Iowa,  529, 
Hultz  V.  Hackly,  63  Penn.  St.  142,  144;  Jackson  ■».  Post,  15  Wend.  588. 

s  Hoosier  v.  Hall,  2  Carter,  556;  Potter  v.  McDowell,  43  Mo.  93;  Massey 
V.  Weseott,  40  111.  160;  Goup  v.  Gartier,  35  Penn.  St.  130. 

^  Ellis  V.  Smith,  10  Geo.  253;  Jackson  v.  Post,  15  Wend.  588;  Jackson  r. 
Chamberlain,  8  Wend.  G20;  Jackson  v.  Terry,  13  Johns.  471. 


284:  JUDICTAL   AXD   EXECUTION    SALES. 

impeii'uctl}'  recorded  tlian  lie  avouM  be  if  tlic  deed  were  not 
recorded  at  all.^ 

§  835,  Jjy  tlie  laws  of  Iowa,  §  1947  of  the  Revision,  a  pur- 
cliaser  at  execution  sale  is  required  to  record  Lis  deed  Avitliin 
twenty  days  after  tlie  expiration  of  the  time  allowed  for 
redemption.  The  failure  to  do  so,  however,  will  not  postpone 
tlie  deed  to  the  benefit  of  a  junior  purchaser  who  buys 
Avith  notice  of  the  deed.  In  Harrison  v.  li^rarner,"  the 
Supreme  Court,  Wright,  Justice,  say:  "However  much  this 
section  might  operate  to  protect  a  Ijona  Jide  purchaser  without 
notice,  who  might  take  title  after  the  twenty  days  tlierein 
named,  it  certainly  cannot  protect  one  who  purchased  with 
actual  notice  of  the  rights  of  the  purchaser  under  the  execu- 
tion, or  one  who  purchases  with  a  fraudulent  intention  to 
defeat  the  execution  purchaser's  title."  This  statute  was  not 
designed  to  protect  fraud,  nor  as  a  penalty  against  a  failure  to 
record,  but  to  protect  the  innocent.  A  purchaser  with  notice 
of  prior  right  in  another  is  not  innocent  in  that  respect, 

IX.       CoiXATERAL    Ilsn'EACHMENT. 

§  83G.  A  sheriff's  deed  on  execution  sale,  to  a  hoiuifida 
purchaser,  if  regular  in  itself,  cannot  be  impeaclied  collaterally 
in  a  collateral  proceeding  for  mere  error  or  irregularity  in  the 
proceedings,  judgment,  execution,  or  return,  or  for  want  of  a 
return,  if  there  be  a  valid  judgment  and  execution.^     JS^or  for 

'  Goup  xi.  Gartier,  35  Penn.  St.  130. 

"  Harrison  v.  Kramer,  3  Iowa,  543. 

^  Landes  c.  Brant,  10  How.  371;  Landcs  b.  Perkins,  13  Mo.  254;  Jackson 
c.  Bartlett,  8  Johns.  3C1;  Jacksou  v.  Roscvelt,  13  Johns.  97;  Ware  t\ 
Bradford,  3  Ahx.  G7G;  Love  «.  Powell,  5  Ala.  58;  Hubert  i;.  McCullum,  « 
Ahi.  221 ;  Cockerell  «.  Wynn,  12  S.  &  M.  117;  Davis  ».  Wornack,  8  B.  Men. 
383;  Huluph  «.  Beeson,  1  Iowa,  (Green,)  199;  Draper  b.  Bryson,  17  Mo.  (2 
Bennett,)  261 ;  Thompson  ©.  Philips,  1  Bald.  C.  C.  246;  Ashby  v.  Abnej%  i 
Hill,  (S.  C.)  380;  Dew  v.  Wright,  1  Pet.  C.  C.  64;  Wood  v.  Colvin,  5 
Hill,  231;  Hines  v.  Scott,  11  Penn.  St.  19;  Maurior  t\  Coon,  16  Wis.  465; 
Bowen  «.  Bell,  20  Johns.  338;  Lessee  of  Wilson  v.  McVcagh,  3  Yates,  86; 
Wilson  &  Gibbs  ».  Corine,  3  Johns.  380;  Vance  «.  Readdon,  2  N.  &  M.  399 ; 
Morrison  •».  Dent,  1  Mo.  346 ;  Dew  v.  Despeaux,  7  Halst.  183 ;  Dew  i\  Farlc}-, 
7  Halst.  326;  Dew  v.  Moore,  7  Halst.  331;  Weyand  v.  Tipton,  5  Sergt.  &  B. 
333;  Clark  v.  Lockwood,  31  Cal.  320;  Ilendrickson  t\  B.  R.  Co.  34  Mo.  188; 


TlIK  DEKI).  2S5 

tlic  reason  tliat  tlio  appraisers,  wliere  tlie  sale  is  under  the 
appraisement  law,  acted  without  seeing  the  land.^  Nor  by 
parole  evidence  that  the  execution  on  which  the  sale  was  made 
was  withdrawn,  or  that  the  levy  had  been  abandoned  before 
the  sale. 2  jN^or  for  the  execution  having  issued  out  of  season, 
or  for  any  fault  of  the  sheriff  in  not  following  the  statute,  if  the 
court  has  jurisdiction  of  the  case  from  which  the  execution 
emanated. 3  Nor  by  failure  of  the  sheriff  to  advertise,  if  the 
purchaser  be  a  'bonajide  ouq.^ 

§  837.  In  Hubhard  v.  Barnes,  29th  Iowa,  the  court  held 
that  a  sale  of  lands  situate  in  one  county,  on  an  execu- 
tion issued  on  a  judgment  in  a  different  county,  was  valid  as 
between  the  execution  plaintiff  and  debtor,  as  also  against  a 
subsequent  purchaser  under  the  execution  debtor  with  notice 
thereof,  although  a  transcript  of  the  judgment  had  not  been 
filed  as  is  by  the  statute  provided,  (Sees.  32-18,  3249,)  in  the 
county  where  the  lands  were  situate  previous  to  the  levy  and 
sale.  The  court  held  that  though  the  judgment  could  not 
become  a  lien  on  such  lands  without  the  filing  of  the  trans- 
cript, and  though  the  judgment  and  sale  together  would  not  be 
noted  without  such  transcript  which  would  be  implied  in  law; 
that  nevertheless  actual  notice  of  such  judgment,  execution  and 
sale  to  a  subsequent  purchaser  under  the  execution  debtor 
serves  in  that  respect  in  the  stead  of  such  filing  of  a  transcript, 

Cox  «.  Joiner,  4  Bibb.  94;  Furguson  «.  Miles,  3  Gilm.  358;  Sexton  «. 
Wheaton,  4  Wheat.  503;  Durham  ij.  Eaton,  28  111.  2G4;  Jackson  «.  Eose- 
velt,  13  Johns.  97;  Lovcll  v.  Powell,  5  Ala.  58;  Ware  ®.  Bradford,  2  Ala. 
GT6 ;  Stow  v.  Steele,  45  111.  328 ;  Kinney  v.  Knoeble,  47  111.  417 ;  Armstrong 
V.  Jackson,  1  Blackf.  210;  Hinds  -y.  Scott,  11  Penn.  St.  1 ;  Anderson  t. 
Clarke,  2  Swan,  (Penn.)  156;  Dunn  v.  Merriweather,  1  Marsh.  158;  Martin 
•e.  McCargo,  5  Litt.  293;  Smith  v.  Morrison,  1  Mon.  154;  Riggs  v.  Dooley, 
7  B.  Mon.  239;  Wilson  v.  McGee,  2  Marsh.  C02;  Childs  v.  McChesncy,  20 
Iowa,  431;  Willard  v.  Whipple,  40  Vt.  219;  Philips  'e.  Coffee,  17  111.  154; 
Bunton  «.  Emerson,  4  G.  Greene,  397. 

'  Jackson  v.  Vanderhej-dcn,  17  Johns.  1C7. 

^  Jackson  v.  Vanderheyden,  17  Johns.  1G7. 

^  Armstrong  v.  Jackson,  1  Blackf.  210;  Thompson  i\  Tolmie,  2  Pet.  157; 
Henry  v.  Ferguson,  1  Bailey,  512;  Barkley  v.  Screven,  1  N.  »&  M.  408, 
Hubbard  v.  Barnes,  29  Iowa,  289. 

*  Lawrence  v.  Speed,  2  Bil)b.  101. 


286  JUDICIAL   AND   EXECUTION   SALES. 

and  renders  the  execution  sale  valid. ^  Of  said  section  3240 
the  court  say:  Beck,  Justice,  its  provisions  "are  directory 
only,  and  compliance  therewith  is  not  necessary  to  authorize 
the  service  of  an  execution  in  a  county  other  than  the  one 
wliei-e  the  judgment  was  rendered."  That  if  there  be  not 
such  compliance,  then  there  will  be  "  no  record  notice  of  the 
levy  and  sale,"  and  "  neither  will  a  judgment  be  a  lien  upon 
lands"  situate  in  such  other  county;  that  although  "in  such 
case  the  law  will  raise  no  presumption  of  notice  of  sale,"  yet 
"  actual  notice  "  "  will  supply  the  want  of  record  notice,  or, 
rather,  the  existence  of  actual  notice,  tlie  very  end  aimed  at 
by  the  statutory  provisions  above  quoted  will  supercede  the 
necessity  of  the  record;"  and  that  the  deed  on  the  sheriff's 
sale  "  will  be  held  valid  as  to  all  having  actual  notice  thereof." - 

§  838.  In  New  Jersey  it  is  held  that  evidence  may  not  be 
received  to  invalidate  an  execution  sale  by  showing  satisfaction 
of  the  judgment. 3  'Nor  will  omission  to  endorse  the  writ 
repleviable,  nor  omission  of  the  notice  of  sale  to  defendant 
required  by  the  statute  render  the  sale  invalid.^ 

§  839.  In  Mississij^pi  the  ruling  is  that  issuing  execution 
and  selling  after  the  deatli  of  defendant  is  merely  an  irregu- 
larity and  does  not  affect  the  sale  when  brought  up  collaterally.^ 

§  840.  Though  the  deed  may  be  made  to  a  person  other  than 
the  purcliaser,  at  the  purchaser's  request,  and  will  in  that 
respect  be  valid;*'  yet,  if  so  made  without  authority  to  one  not 
entitled  to  have  it,  such  fact  may  be  shown  according  to  the 
ruling  in  South  Carolina,  and  wdll  avoid  the  deed.'' 

§  841.  But  the  evidence  of  the  officer  who  made  it  is  not 
allowable  to  alter,  vary,  or  contradict  the  deed  itself,  or  the 
legal  effect  thereof.^ 

'  Hubbard  v.  Barnes,  29  Iowa,  239,  242. 

-  Hubbard  v.  Barnes,  29  Iowa,  242. 

3  Nichols  V.  Disner,  5  Dutch,  (N.  J.)  293. 

*  Eliugcr  V.  Moriaty,  10  Iowa,  78. 

*  Harper  v.  Ilill,  35  Miss.  03;  but  sec  to  the  coutrarj',  Erwin  t.  Dundas, 
4  How.  58. 

*  Landrum  v.  Hatcher,  11  Ricli.  Law.  (S.  C.)  54. 
'  II). 

e  Dunahue  v.  McXulty,  24  Cal.  411. 


THE   DEED.  287 

§  842.  And  tliongli  not  impeachable  collaterally  for  uicro 
error  or  irrci^-ularitj  iu  the  proceedings  and  judgment,  if  there 
be  a  valid  judgment  and  execution,  yet  where  a  seal  is  required 
to  deeds,  and  the  instrument  or  deed  is  not  sealed  it  will  be 
void.i 

X.     Estoppel. 

§  S-i3.  Tlie  defendant  in  execution  is  estopped  by  the 
sheriff's  deed  to  deny  title  in  himself  at  date  of  sale  to  the 
lands  sold.  So  from  date  of  levy  if  the  judgment  be  not  a 
lien;  and  from  the  date  of  the  judgment  wdiere  judgments  are 
liens;  and  he  cannot  set  up  an  outstanding  title  to  avoid  the 
sheriff's  eale.- 

§  8M.  This  dissability  cannot  be  evaded  by  going  out  of 
jiossession  after  the  sale  and  re-entering  under  color  of  an 
alleged  better  title  any  more  than  if  the  deed  be  made  by 
himself^ 

§  845.  In  the  case  cited  from  3  Washington  C.  C.  the  court, 
Washington,  Justice,  state  the  rule  in  terms  as  folio w^s:  "The 
cases  cited  by  the  plaintiff's  counsel  are  full  to  tlie  point,  that 
the  purchaser  under  an  execution  in  an  ejectment  against  the 
defendant  in  the  execution,  or  one  claiming  under  him,  need 
not  show  any  other  title  than  a  judgment,  execution  and 
sheriff's  deed;  and  that  the  defendant  will  not  be  permitted  to 
controvert  such  title  by  showing  it  to  be  defective,  or  by 
.setting  up  a  better  outstanding  in  a  third  jjerson."* 

§  84G.  But  this  rule  will  not  apply  in  a  case  of  a  bare  claim 
to  sell  without  foundation  where  the  execution  debtor  has 
neither  title  nor  possession,  and  does  not  direct  the  levy  and 
sale  of  it  as  his  property.^' 

§  847.  Xor  is  the  execution  debtor  estopped  to  deny  title 
in  himself  in  laiids  sold  under  a  void  execution,  although  he 
direct    tlic  sale;  for  such  execution  and  sale  being  both  void 

'  Moore  V.  Detchmandry,  11  Mo,  431;  ]\rorsan  v.  Branham,  27  Mo.  351. 
•^  Cooper  1).  Galbraith,  3  Wash.  C.  C.  OoO;   O'Neal  v.  Duncan,  4  McCortl, 
24G. 
3  Cooper  V.  Galbraith,  3  Wash.  C.  C.  5.j0;  Jackson  v.  Busli.  10  John.?.  223. 
•»  Cooper  V.  Galbraith,  3  Wash.  C.  C.  550. 
"  Hagaman  v.  Jackson,  1  Wend.  502. 


2SS  JUDICI^U:.    AND    EXECUTION    SALK. 

there  is  no  authority  for  tlic  sale  to  impart  validity  to  the 
estoppel.  1 

§  SiS.  As  against  a  purchaser  at  execution  sale,  the  debtor 
is  estopped  to  deny  his  ownership  of  that  which  he  directs  the 
officer  to  levy  and  sell.  So  also  so,  as  to  those  claiming  under 
such  purchaser.-  This  doctrine  is  asserted  in  Major  v.  Deer, 
by  the  supreme  court  of  Kentucky  in  the  following  terms: 
"  When  the  land  is  sold  at  the  instance,  or  with  the  assent, 
express  or  presumed,  of  the  defendant,  as  he  is  benefited  by  it, 
he  should  be  bound  by  it,  as  his  own  voluntary  act;  and  there- 
fore should  not  be  permitted  to  deny  that  the  purchaser 
acquired  any  title."  ^ 

§  S49.  Though  ordinarily  the  statute  of  frauds  will  cut 
off  a  parole  authority  to  sell  real  estate,  yet  when  there  is  legal 
power  to  sell  and  convey  without  it,  then  such  parole  expres- 
sion of  a  preference  as  to  the  property  to  be  sold  will  be  valid. 

'  Gogeyan  13.  Ditto,  2  llct.  (Ey.)  433. 

-  Kead  v.  Heasley,  2  B.  IMon.  254. 

'  Major  V.  Deer,  4  J.  J.  Marsh.  58.j  ;  Ecad  v.  Ilcasley,  2  B.  Mon.  254. 


CIIArTER    XIX. 

SETTING  SALE  ASIDE. 

I,  Power  of  the  Court  to  Set  Sale  xVside. 

II.  For  Inadequacy  op  Price. 

III.  For  Misconduct  in  Selling. 

IV.  For  Mistake,  Irregularity,  and  Fraud. 
V.  For  Reversal  of  the  Judgment. 

VI.    Return  of  the  Pltjchase  IMoney. 

I.     Power  of  the  Couut  to  Set  Sale  Aside. 

§  850.  The  court  upon  whoso  judgment  the  execution 
issues  has  fall  power  to  set  aside  an  execution  sale  wlienever 
the  ends  of  justice  and  fair  dealing  require  it,  and  to  order  a 
re-sale,  or  award  execution  anew,  at  discretion.  ^ 

§  851.  This  principle  is  aptlj  illustrated,  in  few  words,  in 
McLean  County  Banh  v.  Flagg^^  by  the  Supreme  Court  of 
Illinois:  "The  power  over  its  own  process  is  possessed  by  all 
courts.  Such  power  is  a  species  of  equitable  jurisdiction  that 
is  inherent  in  courts  of  law  as  well  as  those  of  equity.  This 
court  has  repeatedly  held,  as  between  the  purchaser  and  the 
original  parties  to  the  suit,  that  a  court  of  law  will  not  hesitate 
to  exercise  the  power  of  setting  a  sale  aside  on  account  of 
fraud  or  irregularity." 

§  852.  Tiie  application  to  set  a  sale  aside  should  ordinarily 
be  made  first  by  motion  to  the  same  court  from  whence  the  pro- 
cess of  execution  issued;^  and  must  be  made  witliin  a  reasona- 
ble time,  unless  there  be  circumstances  to  excuse  delay.-* 

§  853.     It  has  been  held  that  (if  made  by  motion)  it  should 

■  Draine  v.  Smelscr,  15  Ala.  423;  Reed  «.  Divcn,  7  lad.  189;  Nelson  ■?. 
Bowcn,  23  Mo.  13;  Cummin's'  Appeal,  23  Ponn.  St.  509;  Jones  i\  R.  R 
Co.  32  N.  H.  544;  Davis  v.  Campbell,  12  Ind.  192;  Haydcn  ?j.  Dunlap,  3 
Bibb.  21G. 

2  31  111.  205. 

*Pra1hert\  11111,30  111.402. 

<  Prathci-  ».  Hill,  3G  111.  402;  Stewart  c.  Marshall,  4  G.  Greene  (Iowa)  75. 

(289) 


290  JUDICLVL    AND    EXECUTION    SALES. 

be  made  within  tiie  time  allowed  by  law  for  redemption; ^  ti^t 
at  all  CA'ents  it  slionld  be  before  tlie  intervention  of  interme- 
diate rights  of  third  persons, ^  and  we  may  add  before  barred 
by  lapse  of  time. 

II.     Foil  Inadequacy  of  Pkice. 

§  851,  Ordinarily,  inadequacy  of  price  is  not  alone  sufficient 
cause  for  setting  aside  an  execntion  which  is  in  other  respects 
unexceptionable,  and  ^^■]len  the  sale  is  made  to  a  bona  fide 
purchaser.  ^ 

§  855.  But  when  the  inadequacy  is  such  as  to  amount  to  a 
badge  of  fraud,  or  together  with  other  circumstances  is  such  as 
to  shock  the  moral  sense,  and  particularly  when  surrounded  by 
indications  of  hardship  and  unfairness,  the  sale  vrill  be  set 
aside.^ 

§  856.  And  when  the  price  sold  for  is  greatly  inadequate, 
and  the  notice  of  sale  is  indifferently  given,  or  set  up  at  a  great 
distance  from  the  place  of  sale,  or  there  are  other  circumstances 
tending  to  show  that  an  opportunity  was  not  given  for  proper 
competition  of  bidders,  the  sale  will  be  set  aside.  ^' 

'Raymond  v.  Pauli,  21  Wis.  531;  Stewart  i\  Marshall,  4  G.  Greene, 
(Iowa)  73. 

»  Prather  «.  Hill,  3G  111.  403. 

'  Duncan  v.  Saunders,  50  111.  475;  Boyd  'o.  Ellis,  11  Iowa,  97;  Coleman r. 
Bank  of  Hamburg,  2  Strobli.  Eq.  285;  Reed  v.  Brooks,  3  Lift.  127;  Wallace 
c.  Berger.  25  Iowa,  45G;  King  «.  Tharp,  2G  Iowa,  283;  Mixer  «.  Sibley,  53 
111.  61;  Comstock  «.  Purple.  49  111.  158;  McMullen  v.  Gable  47  111.67; 
Am.  Ins.  Co.  v.  Oakley,  9  Paige,  259 ;  Hannibal  and  St.  Joe  R.  R.  Co.  t. 
Brown,  43  Mo.  294. 

*  Boyd  t>.  Ellis,  11  Iowa,  97;  Howell  «.  Baker,  4  Johns.  Ch.  119,  120;  Gist 
V.  Frazicr  &  Stewart,  2  Litt.  121;  Blight  -c.  Tobin,  7  Mou.  61G;  King  'c. 
Tharp,  2G  Iowa,  283 ;  Hannibal  and  St.  Joe  R.  R.  Co.  v.  Brown,  43  Mo.  294; 
San  Francisco  «.  Pickley,  21  Cal.  5G. 

»  Nesbitt  «.  Dallam,  7  Gill.  &  J.  494;  Swope  v.  Ardery,  5  Ind.  213,  215; 
Griffith  V.  Hadley,  10  Bosw.  587 ;  Hannibal  and  St.  Joe  R.  R.  Co.  ■».  Brown, 
43  Mo.  294;  Ringold  xi.  Patterson,  15  Ark.  209.  In  Hannibal  and  St.  Joe 
R.  R.  Co.  v.  Brown,  the  Supreme  Court  of  Missouri  lay  down  the  rule  as 
follows:  "It  may  be  stated  as  a  general  proposition  that  inadequac}-  of 
consideration  is  not  of  itself  a  distinct  principle  of  relief  in  equity. 
XeverMieless,  where  the  transaction  discloses  such  uuconscionableness  as 
shocks  the  moral  sense  and  outraires  the  conscience,  courts  will  iucerfere 


SiaTIXG    SALE   ASIDE.  291 

§  857.  So,  when  tlie  price  sold  for  is  inadequate  and  the 
purchaser  concealed  knowledge  which  would  tend  to  influence 
others  to  bid  a  greater  sum,  the  sale  will  be  set  aside.^ 

§  858.  Likewise,  if  the  plaintiff  in  execution  bid  in  the 
property  by  an  oversight  for  less  than  his  debt,  and  is  willing 
to  bid  the  full  amount  thereof,  the  sale  will  be  set  aside,  and  a 
re-sale  will  be  ordered  on  his  application." 

§  859.  Where  at  an  execution  sale  there  was  coiifusion  in 
bidding  by  reason  of  conflicting  writs  of  execution  and  liens, 
and  also  from  conditional  and  unconditional  bids  being  made 
by  one  and  the  same  person,  having  a  tendency  to  confuse  and 
disconcert  the  officer,  and  the  property  sold  for  a  very  inade- 
quate sum  compared  to  its  real  value,  the  court  held  that  the 
sale  should  be  set  aside. ^  The  otiicer  "can  receive  only  aii 
unconditional  cash  bid."  Those  acconi]-»anied  with  a  condition 
should  not  be  heeded.^ 

§  860.  If  a  purchaser  at  sherift"'s  sale  succeed,  by  felse 
statements  or  suijirestions,  in  deterrins;  others  from  bidding  and 
thereby  obtain  the  property  for  an  inadequate  price,  the  sale 
will  be  set  aside  ^  and  a  re-sale  ordered. 

§  8G1.  But  one  claiming  an  interest  in  lands  under  an 
executory  contract  of  sale  which  is  fraudulent  as  against  the 
creditors  of  the  party  thus  undertaking  to  sell,  cannot  com- 
plain that  the  lands  were  sold  on  execution  against  his  intended 
grantor  for  an  inadequate  price  as  a  reason  for  setting  aside 
the  execution  sale;  nor  can  the  fraudulent  claimant  of  such 
spurious  incipient  right  set  it  up  against  the  prior  legal  title 
of  the  execution  purchaser  procured  by  means  untainted  with 

to  promote  the  ends  of  justice  and  defeat  the  macliinalions  of  fraud.  The 
very  fact  that  upwards  of  eleven  thousand  acres  of  valuable  land  in  one 
of  the  best  counties  in  the  state  was  levied  on  to  satisfy  an  execution  of 
less  than  one  hundred  and  fifty  dollars,  is  suggesfive  of  the  most  flagrant 
abuse  of  legal  process." 

'  Hutchinson  v.  Moses,  1  Browne,  187. 

^  Ontario  Bank  v.  Lansing,  2  Wend.  200. 

3  Swope  V.  Ardcry,  5  Ind.  213. 

"  Ibid. 

5  Vantrecs  v.  Hyatt,  5  Ind.  487;  Bouts  v.  Cole,  7  Blackf  2G3;  Bethel  v. 
Sharp,  25  III.  173. 


292  JUTHCI.VI.    AND   EXECUTIOX    SALES. 

iVaiid.  Sucli  fraudulent  claim  is  invalid  as  against  tlie  rights 
of  a  Jjona  fide  j^urcliaser  under  the  execution. ^  For  the  pre- 
tended owner  of  it  the  law  aftbrds  no  remedy  or  day  in  court. 
AYere  it  untainted  with  actual  fraud  it  would  still  be  invalid 
for  want  of  consideration,  as  against  the  bona  fide  creditors  of 
the  maker  of  it. 

III.     Foii  Misconduct  of  the  Officer  Selling. 

§  8G2.  A  court  has  full  power  over  its  officers  and  their  acts 
in  inakin2:  execution  sales,  so  far  as  to  correct  all  wrongs  and 
abuses,  errors  and  irregularities,  mistakes,  omissions,  and 
frauds;  and  whenever  it  is  satisfied  that  a  sale  made  under  its 
process  is  affected  with  fraud,  irregularity,  or  error,  to  the 
injury  of  either  l^arty  in  interest,  or  that  the  officer  selling  is 
guilty  of  any  wrong,  irregularity,  or  breach  of  duty,  to  the 
injury  of  the  parties  in  interest,  or  of  either,  or  of  any  one  of 
them,  the  court,  on  proper  apj^lication,  will  set  the  sale  aside 
and  order  a  re-sale.- 

§  8G3.  Though  it  is  the  duty  of  the  officer  to  sell  in  jjarcols, 
or  a  less  parcel  than  the  whole  tract,  where  a  less  quantity  will 
subserve  the  purpose  of  satisfying  the  execution,  yet  the  sub- 
division must  be  discreetly  made  with  a  view  to  the  interests 
of  all  concerned.  Therefore,  for  an  officer  to  sell  a  central  por- 
tion of  a  tract  of  land  to  his  own  son-in-law,  and  so  taken  out 
of  the  tract  as  to  greatly  impair  the  value  of  the  residue,  and 
so  as  to  cut  off  all  direct  communication  betw^een  the  remain- 
ing parcels,  is  an  abuse  of  the  process  of  the  court;  such  an 
abuse  is  the  more  aggravated  if  the  land  be  sold  for  a  sum 
greatly  below  its  true  value,  and  the  court  will  set  aside  such  a 

'  Daniel  v.  McIIcniy,  4  Burk,(Ky.)  277. 

-  Hamilton  v.  Burch,  28  Ind.  23;J;  Lashlcy  'c.  Cassell,  23  Ind.  GOO;  Drain 
V.  Smelscr,  15  Ala.  423;  White  Crow  c.  White  Wing,  3  Kan.  27G;  Beutz  x. 
nines,  3  Kan.  390.  In  Hamilton  «.  Bush,  the  court  say:  "  Where  there  is 
any  departure  from  duty  on  the  part  of  the  sheriff,  vrhich  may  prove 
injurious  to  the  rights  of  the  execution  defendant,  in  the  sale  of  the  prop- 
erty, and  the  consideration  paid  is  greatly  inadequate,  the  sale  will  be  set 
aside." 


si-:rnKO  sale  asidk.  2 OP. 

sale,  both  for  the  improper  conduct  of  the  officer  and  for  inade- 
quacy of  price.  ■^ 

lY.     Fou  MiSTAKK,  LiKi-:(u:[.AmTv,  and  Fjiauh. 

§  8G4.  A  sheriffs  sale  of  hind  on  execution  -will  be  set  aside 
for  irregularity,  fraud,  or  mistake,  or  for  a  -willful  disregard  of 
the  law,  as  to  the  manner  of  selling,  wherobj  an  injury  results 
to  either  party  in  interest,  or  to  tliird  ])crsons  interested  l>ona 
fide  in  tlie  subject  matter  of  the  sale.  Such  is  the  general 
tenor  of  the  authorities  on  the  subject.- 

§  865.  Thus,  the  sale  on  execution  of  '*  specific  farms  and 
lots  of  land  together,"  (says  SrENCER,  Justice,)  or  "  sales  in 
mass  of  real  estate  held  in  parcels,  arc  not  to  be  countenanced 
or  tolerated."  They  arc  oppressive  and  unnecessary,  even  if 
there  be  no  actual  frauds,  and  will  on  motion  be  set  aside. ^ 

§  S66.  So,  likewise,  if  by  law  the  execution  plaintiff  has 
tlie  right  of  election  as  to  what  property  shall  be  levied,  or  the 
order  in  which  it  shall  be  taken,  and  is  not  allowed  to  exercise 
that  right,  the  levy  in  such  cases,  will  bo  set  aside,"*  and  so 
would  the  sale  if  made. 

§  867.  And  so  if  the  sheriff  raise  by  execution  sale  a  greater 
amount  of  money  than  by  the  writ  he  is  commanded  to  make, 
with  costs,  and  the  land  sold  was  susceptible  of  subdivision  so 
as  to  sell  a  less  quantity  and  raise  the  amount  only  of  money 
required,  the  sale  will  be  set  aside,  unless  the  separation  and 

'  Hamilton  %\  Eurcli,  28  Ind.  233;  Laslilcy  v.  Cassell,  23  IncL  GOO. 

-  Cattell  v.  Gilbert,  23  Ind.  614;  Vantrecs  «.  Hyatt,  5  Ind.  487 ;  Mobile 
Cotton  Press  Co.  v.  Moore,  9  Port.  679;  Mj^ers  v.  Saunders,  7  Dana,  50C: 
Dougliertyr.  Lintliicum,  8  Dana,  194;  Rector  f.  Hart,  8  Mo.  448;  Bay  i-. 
Gilleland,  1  Cow.  230;  Hayden  ^).  Dunlap,  3  Bibb,  216 ;  Hutchins  «.  Moses, 
1  Browne,  187;  Wiggins  «.  Chance,  54  HI.  17i5;  Stewart  -y.  Nelson,  25  Mo. 
309;  Abby  v.  Dewey,  25  Penn.  St.  416;  Niel  n.  Hone,  20  Mo.  296;  Hooten 
V.  Hirakle,  20  Mo.  290:  Stewart  v.  Severance,  43  Mo.  322;  Reed  v.  Carter,  3 
Blackf.  376 ;  Bethel  v.  Sharp,  25  III.  173. 

'  .Jackson  v.  Newton,  18  Johns.  355;  Boyd  c.  Ellis,  11  Iowa,  97;  Bradford 
V.  Limpus,  13  Iowa,  424;  Patton  «.  Stewart,  19  Ind.  233;  City  of  San  Fran- 
cisco «.  Pirley,  21  Cal.  56:  Griffith  v.  Hadley,  10  Bosw.  587. 

•*  Evans  v.  Langdon,  1  Gilm.  307;  Wiggins  t\  Chance,  54  HI.  175;  Steven- 
sou  t\  Maroay,  29  111.  534. 


29-1  JUDICIAT-   AND   EXECUTION    SALES. 

sale  of  a  smaller  quantity  would  Lave  tended  to  impair  tlic 
value  of  the  diiferent  parts  when  so  separated.^ 

§  S6S.  The  sheriff's  deed  will  not  be  set  aside  for  being 
executed  bv  the  sheriff's  deputy.  In  Carr  v.  Hunt,  the  Iowa 
Supreme  Court  hold  on  this  subject  the  following  language: 
'-  Tliat  the  sheriff's  deed  was  executed  by  the  deputy  of  the 
sheriff  is  no  cause  for  setting  it  aside  at  the  instance  of  the 
<Iefendant  in  execution.  And  then  if  the  deed  was  set  aside 
the  judgment  or  decree  and  sale  would  remain.  If  the  sale 
was  valid,  to  set  aside  the  deed  would  accomplish  no  practical 
good." 

§  8G0.  Tlie  princij)al,  or  high  sheriff,  may  execute  the  deed 
by  his  deputy;  that  is,  the  dej)uty  may  perform  the  manual 
act  of  making  it;  but  it  must  purport  to  be  the  act  and  deed 
of  the  principal  by  his  deputy,  and  not  the  act  of  the  deputy. 
It  must  be  done  in  the  name  of  the  principal  oiHcer.^ 

§  870.  If  lands  consisting  of  several  parcels  be  levied  and 
sold  in  the  aggregate,  the  sale  will  be  set  aside.^  This,  too, 
]iotwithstanding  they  bring  an  adequate  price,  for  such  manner 
of  selling  2>uts  impediments  in  the  way  of  redemption,  as  the 
judgment  debtor  will  be  compelled  to  redeem  the  whole  or 
none.  Moreover,  although  the  price  sold  for  may  appear 
adequate,  yet  the  debtor  is  entitled  to  have  the  property  bring 
all  it  will  command,  and  no?i  constat^  but  that  if  ofiered  in 
parcels  the  aggregate  amount  of  the  sale  would  have  been 
irreater  than  when  sold  as  a  whole. 

§  871.  And  the  court  will  interfere,  if  necessaiy,  by  injunc- 
tion to  prevent  the  delivery  of  the  deed  by  the  sheriff  where 
different  parcels  of  land  are  so  sold  in  the  aggregate.'^ 

§  872,  If  the  plaintiff  in  execution  be  the  purchaser  and  it 
turns  out  that  defendant  had  no  interest  in  the  land,  so  that  by 
the  sale  ^^laintiff  took  nothing,  the  sale  will  be  set  aside  and 
satisfaction  of  the  judgment  will  be  cancelled.^ 

'  Carlisle  i;.  Carlisle,  7  J.  J.  Marsh.  625. 
=  Carr  v.  Hunt,  14  Iowa,  20G. 

'Jackson  «.  Ilosevelt,  18  Johns.  ZTio;  Piel  v.  Brayer,  30  Ind.  332;  '^Vin- 
fcrs  V.  Burford,  G  Coldw.  (Tenn.)  320;  Catlctt  v.  Gilbert,  23  Ind.  014. 
*■  Ballauce  v.  Loomis,  22  111.  82. 
'  Ritcr  r.  Ilenshaw,  7  Clarke  (Iowa)  97;  Watson  t.  Reissig,  24  111.  281. 


SETTING   SAr.E   ASIDE.  295 

§  872.  Tlio  execution  sale  of  lands  at  a  greatly  inadequate 
price,  and  in  mass,  by  description  of  the  original  tract,  which 
had  been  subdivided  into  city  lots  and  platted  as  such  on  the 
official  map,  was  set  aside  as  irregular  for  not  having  been 
sold  or  offered  in  parcels,  as  also  for  inadequacy  of  price. ^ 

§  873.  But  in  some  of  the  states  it  is  held  that,  to  justify 
the  settinc:  aside  a  sale  for  beino;  sold  in  mass  instead  of  in 
parcels,  it  should  be  made  apparent,  to  the  satisfaction  of  the 
court,  that  a  materially  larger  sum  would  have  resulted  from 
the  sale  if  sold  in  jjarcels,  or  else  that  the  sale  of  less  than  the 
whole  tract  would  have  brought  enough  to  satisfy  the  writ.^ 

§  874.  If  one,  by  means  of  promises  of  favor,  prevents 
others  from  bidding  for  lands  at  an  execution  sale,  and  thereby 
obtain  them  himself  at  an  mider  value,  he  will  not  be  per- 
mitted thus  to  enrich  himself  at  the  expense  of  others  against 
all  the  principles  of  equity  and  moral  pro23riety.  Such  a  sale 
will  be  set  aside  if  a  proper  application,  in  j)i'oper  time,  be 
made.  ^ 

§  875.  And  so,  where  23roperty  was  bid  in  at  execution  sale 
at  a  price  greatly  above  its  true  value,  under  the  impression 
and  belief  of  the  purchaser  and  of  the  officer  selling,  induced 
by  the  defendant  in  execution  that  the  land  covered  a  factory 
of  considerable  value,  Vvdien,  in  fact,  the  i^remises  sold  consisted 
of  merely  a  garden  spot  of  trivial  value,  the  sale  was  set 
aside.  ^ 

§  876.  A  charge  on  land  by  will  for  the  payment  of  a  dece- 
dent's debts,  is  in  effect  a  devise  of  the  land  for  the  payments 
of  the  debts,  and  is  a  trust  which  chancery  will  take  hold  of 
and  sec  that  it  is  equitably  applied.  The  land  being  thus  a 
subject  of  trust,  which  is  cognizable  in  equity  only,  is  not  lial)le 
to  levy  and  sale  on  execution  under  a  common  law  judgment, 
and,  therefore,  one  creditor  of  the  decedent  cannot  take  advan- 
tage of  other  creditors  and  absorb  the  fund  by  taking  judg- 
ment against  the  heirs,  but  must  come  into  equity  for  a  just 

'  City  of  San  Francisco  v.  Pixley,  21  Cal.  50. 

^  "Wallace  v.  Berger,  23  Iowa,  45G;  Cunningham  v.  Fclkor,  26  Iowa,  117. 

'  Jilills  V.  Rogers,  3  Litt.  217. 

'  ]\Iullv3  V.  Allen,  12  Wend.  253;  Ontario  Bank  v.  Lansing,  2  Wend.  2G0. 


29G  JUDiaAL  AND  KXECUTION  SAI.K. 

and  ratable  distribution,  and  if  lie  undertakes  to  proceed 
against  the  heirs  by  levy  and  sale,  on  a  judgment  against  them, 
the  administrator  may  maintain  before  the  chancellor  a  motion 
to  quash  or  set  aside  the  sale  J  Equality  is  equity,  and  one 
creditor  cannot  by  superior  diligence  appropriate  a  trust  fund 
ibr  creditors  generally  to  his  own  benefit. 

§  877.  If  a  sheriff's  sale  be  regular  and  fairwlien  made  no 
subsequent  fraud  or  irregularity  in  anything  regarding  it  will 
affect  its  validity  or  cause  it  to  bo  set  aside.  The  cause  must 
have  existed  at  the  time  of  the  salo.^ 

§  878.  A  sale  will  be  deemed  fraudulent  and  will  be  set 
aside  in  Illinois  for  being  made  of  lands  in  a  distant  county 
from  defendant's  residence,  without  his  knov/ledge  and  under 
circumstances  rendering  it  improbable  that  he  may  leai'n  of 
it,  more  especially  when,  at  the  same  time,  there  is  ample 
property  of  defendant  liable  to  sale  on  execution  in  the  county 
wherein  defendant  fesides.  Such  a  procedure  is  indicative  of 
fraud  and  will  not  be  upheld  if  application  be  made  in  proper 
time  and  manner  to  set  the  sale  aside. ^ 

§  879.  Y/hcre  there  is  such  misdescription  of  the  premises 
that  the  purchaser  can  take  notliing  by  his  purchase,  the  sale 
will  be  set  aside  on  application  of  the  purchaser. * 

§  SSO.  So  Avhere  the  defendant  in  execution  has  no  interest 
in  the  j) remises  sold,  and  is  not  in  possession,  so  that  the  buyer 
takes  nothing,  the  court  will,  under  certain  circumstances,  set 
aside  the  sale.^ 

§  881.  Though  a  bid  may  be  received,  if  fairly  made,  and 
publicly  cried  at  the  time  and  place  of  sale,  notvv-ithstanding 
it  is  made  by  letter;  yet  if  it  be  not  publicly  announced,  but 
1)0  received  and  privately  noted  in  the  house,  instead  of  at  the 
door  of  the  place  of  sale,  with  publicity,  or  if  there  be  any 
other  indications  of  unfairness,  the  sale  will  be  set  aside. "^ 

'  Helm  V.  Darby,  3  Dana,  185. 

•^  McCollum  V.  llubbcrt,  13  Ala.  289. 

'  Hamilton  v.  Quinby,  40  111.  90. 

*  JlcPherson  r.  Foster,  4  Wash.  C.  C.  4o;   Hughes  v.  Strccter,  24  111.  047. 

*  Rockwell  V.  Allen,  3  McLean,  357. 
«  Dickinson  c.  Burgc,  20  111.  2CG 


f^i-rriNG  SAi.K  asu)j:.  20" 

§  SS2.  In  Davis  v.  Cavi/plell,  wliicli  "was  a  direct  procecd- 
ino;  to  set  aside  a  sale  of  lands  on  execution,  tlic  Supreme  Court 
of  Indiana  hold,  that  where  the  statute  inhibits  the  sale  of  the 
lands  in  fee,  until  the  rents  and  ])rotits  be  first  offered  for  a 
term  of  years  without  finding  bidders,  that  a  sale  of  the  fee 
of  the  realty  in  the  first  instance,  without  first  offering  the 
rents  and  profits,  is  erroneous  and  will  be  set  aside.  And  that 
where  the  statute  declares  the  realty  is  not  to  be  sold  without 
appi'aisement,  and  a  sale  is  made  in  disregard  thereof,  that  sucli 
sale  is  unauthorized  and  will  be  set  aside.  And  so  if  the  statute 
give  the  debtor  the  right  to  select  the  property  to  be  levied 
and  sold,  and  the  right  is  denied  him,  and  a  sale  made  in  dis- 
reirard  of  it,  such  sale  also  will  be  set  aside.  The  court  in 
that  case  make  no  decision,  they  say  as  to  whether  the  sale 
would  or  would  not  have  been  held  void  collaterally,  but  remark 
that  "  a  sale  will  be  set  aside  as  erroneous  in  a  direct  preceding 
for  that  purpose,  when  it  would  not  be  held  void  in  a  collateral 
suit."i 

§  SS3.  W^iere  a  sheriff's  sale  of  land  was  made  under  three 
writs  of  execution,  the  senior  one  of  which  being  the  first,  if 
valid,  to  be  satisfied,  was  void,  such  sale  Avas  held  invalid  and 
was  ordered  to  be  set  aside.- 

§  SS-i.  And  so  two  Avrits  of  execution,  being  at  the  same 
time  in  the  hands  of  an  oflicer  for  levy  and  sale  against  one 
and  the  same  execution  debtor,  the  senior  one  of  which  writs 
was  subject  to  the  valuation  of  appraisement  law,  and  the  other 
not,  a  sale  made  thereon,  not  in  accordance  v.-ith  the  valuation 
law,  was  held  irregular  and  was  set  aside. ^  Such  were  the 
rulings  in  the  Supreme  Court  of  Indiana. 

§  885.  But  in  Wisconsin  it  is  held  that  an  execution  sale  on 
two  writs,  one  of  which  is  void  and  the  other  valid,  will  confer 
title  under  the  valid  writ."* 

§  880.     ■>\^iere  the  execution  plaintifi'  is  purchaser  at  sherift''s 

1  12  Iiul.  192. 

2  Brown  v.  McKay,  IG  Iml.  48-1;  Ilntchins  v.  Doe,  3  Ind.  528;  Clark  v. 
Watson,  2  Ind.  400. 

'  Harmon  v.  Stipp,  8  Blackf.  45o. 
*  Ilcrrick  v.  Graves,  10  Wis.  107. 


'208  JUDiaAL   A^'D    EXECUTION    SALJvS, 

sale,  by  a  description  so  defective  tliat  notliiiinr  passes  Lj  tlic 
sale,  tlie  purchaser  "  lias  an  equitable  right  to  have  the  levy 
and  sale  set  aside  and  an  execution  awarded,  by  which  he  can 
have  the  benefit  of  his  judgment."  But  it  must  be  done  by 
the  court.  The  cleric  has  no  jjower,  being  a  ministerial  officer, 
to  set  aside  a  levy  or  sale,  or  to  vacate  an  entry  of  satisfaction. 
These  are  judicial  acts,  and  require  the  exercise  of  a  judicial 
power  equal  to  that  which  rendered  the  judgment.  ^ 

§  887.  If  a  sheriff  omit  to  give  the  proper  notice  of  an 
execution  sale,  and  a  person  cognizant  of  that  fact  induce  the 
officer  to  sell  vathout  notice  by  giving  him  a  bond  of  indem- 
nity, and  then  becomes  the  purchaser,  such  conduct  of  the 
sheriff  is  illegal,  and  the  purchaser  being  'particcps  crimims 
to  it,  the  sale  is  illegal,  erroneous,  and  void  for  fraud,  and  will 
l)C  set  aside.  ^ 

§  SSS.  The  endorser  of  a  mortgage  note  has  such  an  interest 
as  will  entitle  him  to  prosecute  proceedings  to  set  aside  the 
judicial  sale  of  the  mortgaged  premises,  and  more  especially 
so  if  the  mortgagor  or  j^aj'or  of  the  note  be  insolvent.  Conse- 
quently, where  the  whole  amount  of  the  mortgage  debt  was 
estimated  by  the  a2"'pi'''''iser,  in  appraising  the  lands,  as  resting 
j\\  the  lands  so  appraised,  when  other  lands  w^ere  also  liable 
therefor,  and  thereby  diminishing  its  appraised  value,  and  the 
land  was  then  sold  in  bulk,  without  an  effort  to  sell  it  in  sepa- 
rate parcels,  it  was  holden  that  for  these  irregularities  such 
endorser  was  entitled  to  have  the  sale  set  aside  for  his  own 
protection  as  such  endorser.-" 

§  889.  The  statute  of  Iowa,  (Eevision  of  1860,  sec.  3318,) 
requiring  notice  of  levy  of  a  writ  of  execution  on  lands  to  be 
given  to  the  defendant  in  the  writ,  applies  as  well  to  special 
executions  in  mortgage  foreclosures  as  to  ordinary  executions 
•  tf  a  general  character.^ 

§  890.  And  where  a  levy  and  sale  is  made  under  such  special 
execution  of  lands  in  actual  possession  of  the  execution  debtor, 

'  Hughes  V.  Strceter,  24  111.  C47. 
-  Haydon  v.  Dunlap,  3  Bibb.  210. 

*  Whitney  v.  Armstrong,  32  Iowa,  D. 

*  Fleming  v.  Maddox,  30  Iowa,  239. 


STirrnxG  sale  asidk.  209 

Avitliont  giving  liiin  the  notice  required  by  tlie  statute,  tlie 
court  -will,  on  proper  application,  made  in  due  time,  set  the 
sale  aside;  if  by  motion  under  the  statute  the  application  is  to 
be  made  "at  the  same,  or  the  next  term  thereafter." ^  But 
doubtless  the  sale  Avould  be  set  aside  for  the  same  cause  on 
petition  at  any  time,  before  the  rights  of  innocent  persons 
intervene,  and  -within  a  reasonable  time.  The  remedy  by  motion 
is  not  exclusive. 

§  801.  And  so,  when  an  attachment,  or  execution  levy,  is  so 
grossly  excessive  as  to  raise  the  presumption  of  unfairness,  and 
as  to  amount  to  oppression,  and  valuable  lands  are  sold  on 
execution  in  a  body,  for  a  sum  greatly  below  their  real  value, 
the  sale,  where  rights  of  innocent  persons  have  not  attached, 
will  be  set  aside;  and  especially  where  the  attorney  of  the 
plaintiff  is  the  execution  purchaser. 

§  802.  And  in  such  case,  in  answer  to  the  objection  of  selling 
en  masse,  it  will  not  be  inferred  that  the  officer  first  offered  a 
smaller  portion  of  the  land  without  obtaining  a  bid;  but  the 
inference  will  be  rather  that  of  misconduct  on  his  part  in  that 
respect.  The  Supreme  Court  of  Iowa,  Beck,  Justice,  in  this 
respect,  hold  the  following  language:  "It  cannot  be  presumed 
that  the  proceeding  upon  the  execution,  beginning  in  the  vio- 
lation of  law  and  duty,  and  resulting  in  injustice  and  oppres- 
sion, was  made  valid  by  obedience  to  the  law  in  its  intermediate 
steps."  2 

§  803.  In  Wisconsin  it  is  holden  that  sale  of  real  property 
:is  a  whole  tract,  when  by  statute  it  is  directed  to  be  sold  in 
parcels,  though  not  void,  is  voidable  at  the  discretion  of  the 
aggrieved  party,  and  on  application  therefor;  but  that  such 
application,  unless  prevented  by  mistake,  fraud,  or  other  legal 
excuse,  must  be  made  within  the  time  allowed  by  law  for 
redemption  from  the  sale.  And  that  a  subsequent  mortgagee 
cannot  apply  to  set  the  sale  aside,  but  must  seek  his  equitable 
right  by  action  to  redeem,"' 

§  804.     Tlie  courts  will  sometimes  interfere  by  injunction 

'  Fleming  v.  Maddox,  oO  Iowa,  2:J9. 

"  Cook  V.  Jenkins,  30  Iowa,  1~)2. 

'  Raymond  v.  Pauli,  21  Wis.  ."illl  ;  Giiswold  r.  Stonghton,  3  Oregon,  Gl. 


300  JUDICIAL    AND    EXECUTION    SALES. 

to  prevent  delivery  of  a  deed,  when  different  parcels  of  land 
have  been  sold  in  mass,  at  a  price  greatly  under  valne;  but 
the  relief  will  be  afforded  on  the  principle  of  doing  equity, 
when  equity  is  asked,  and  therefore  the  judgment  debtor  ask- 
ing the  injunction  will  be  required  to  pay  off  the  judgment 
when  the  injunction  is  made  perpetualJ 

§  805.  In  the  case  of  BallancG  v.  Zoomis,  here  cited,  the 
plaintiffs  in  execution  were  the  purchasers  at  sheriff's  sale, 
lience  the  requirement  in  the  decree  tliat  payment  be  made  of 
the  judgment. 

§  896.  An  execution  sale  of  land  and  deed  thereon,  though 
as  to  the  description  of  the  land  so  uncertain  as  to  render  it 
inoperative  or  void  at  law,  in  an  action  of  right,  will  not  be 
set  aside  or  treated  as  void  in  a  proceeding  in  chancery  in 
the  course  of  which  it  is  made  to  ajDpear  that  the  very  lands 
intended  to  be  levied  and  sold  were  levied,  sold  and  conveyed, 
and  that  though  the  irregularity  in  that  resjDect  is  against  the 
execution  purchaser,  _yet  the  equity  of  the  case  is  on  his  side 
and  in  favor  of  sustaining  the  sale  and  convej'-ance.-  In  the 
case  here  cited  from  30  Iowa,  the  court  say,  IMiller,  Justice: 
"  The  appellants  insist,  that  the  sheriff's  deed  is  void  for  uncer- 
tainty in  the  description.  This  objection  would  perhaps  be  good 
if  defendants  were  suing  at  law  in  ejectment.  But  plaintiffs 
are  asking  a  court  of  equity  to  quiet  the  title  to  this  land  in 
them,  and  the  defendants  aver  facts  which  in  equity  make  it 
their  property.  These  facts  the  demurrer  confesses.  The 
plaintiffs  admit  that  this  very  same  land  was  levied  on  under 
the  execution  issued  upon  the  judgment  of  the  Wapello  dis- 
trict court,  in  favor  of  the  State  Bank  of  Indiana,  against 
Charles  F.  Harrow;  that  this  very  same  land  was  sold  by  the 
sheriff  to  Ilall  &  Wilson;  but  they  (the  plaintiffs)  endeavor  to 
avoid  the  effect  of  this  by  pointing  out  a  defect  in  the  descrip- 
tion of  the  land  thus  sold  in  the  sheriff''s  deed,  and  in  equity, 
to  take  advantage  of  such  defective  description.     There  is  no 

'  iiallance  v.  Loomis,  22  111.  82. 

2  Ilackworth  «.  Zollars,  30  Iowa,  435,  438;  Glenn  r.  Malona,  4  Iowa,  314, 
320;  Dygcrt  v.  Plctts,  25  Wcml.  402;  Lamb  r.  Buckmclicr,  24  N.  Y.  G20. 


SETTINO    SALE    ASIDE.  301 

equitable  principle  upon  wliicli  tliej  can  bo  permitted  to  do 
this."i 

§  897.  Ecpiitj  will  not  avoid  a  sale  for  mere  irregularity, 
nor  for  uncertainty  of  description,  rendered  sufficiently  certain 
in  the  very  proceedings  by  wliicli  it  is  souglit  to  be  set  aside. 
It  is  not  the  office  of  the  chancellor  to  relieve  upon  grounds 
merely  technical. 

Y.       Foii    ItlCVKKSAL   OF   JUDGMENT. 

§  898.  It  is  a  principle  well  settled,  that  where,  at  an  exe- 
cution sale,  the  plaintiff  in  execution,  or  owner,  or  beneficiary 
of  the  judgment,  becomes  the  purchaser,  and  the  judgment 
be  afterwards  reversed,  that  the  sale  will  on  motion  or  on  any 
other  proper  and  timely  application  be  set  aside.  Tliat  the 
defendant  will  be  entitled  to  be  placed  in  the  same  position 
which  he  occupied  before  the  rendition  of  the  judgment,  and 
to  have  restitution  of  whatever  he  has  lost  by  the  sale,  pro- 
vided the  same,  or  the  title  thereto,  has  not  passed  out  of  such 
purchaser  to  a  lonajide  purchaser,  or  in  some  manner  become 
subject  to  some  right,  erpiity  or  lien  lojia  fide  acquired  by  an 
innocent  person.^ 

§  899.  And  the  same  principle  applies  and  will  be  enforced 
where  the  purchase  at  the  execution  sale  is  made  by  the  agent 
of  the  plaintiff  or  bencliciary  of  the  judgment,  or  by  his  or 
their  attorney  in  charge  of  and  prosecuting  the  proceedings, 
or  by  any  other  person  for  or  in  privity  of  interest  with  the 
plaintiff  or  beneficiary  of  the  judgment,  so  long  as  the 
property  remains  clear  of  hona  fide  rights  of  innocent  third 
persons.^ 

§  900.  But  the  contrary  is  the  rule  when  the  purchaser  at 
the  sheriff's  sale  is  an  innocent  third  person,  and  is  a  Ijona 

'  Ilackworth  ti.  Zollars,  30  Iowa,  433,  438. 

^  Gott  «.  Powell,  41  Mo.41G;  Corwith  ^.  State  Bank,  15  Wis.  2S9;  JMcBain 
Ti.  McBaiii,  1.1  Ohio  St.  337;  Hannibal  &  St.  Joe  II.  R.  Co.  v.  Brown,  43  Mo. 
294;  Milton  t).  Love,  13  111.  48G;  Datcr  ^.  Troy,  etc.  Co.  3  Hill,  G29;  Win- 
ston  t\  Ortlcy,  25  Miss.  45G;  Hubble  v.  Broadwell,  8  Ohio,  120, 127. 

s  Hannibal  &  St.  Joe  R.  R.  Co.  v.  Brown,  3  Mo.  294;  Gott  v.  Powell,  41 
Mo.  41G. 


302  JUDICIAL    AND   EXECUTION   SALES. 

iiJe   pureliascr,   who   has   paid   the  purchase   money   bcforo 
obtaining  knowledge  of  tlie  reversal  of  tlie  judgment. ^ 

§  001.  In  the  ease  of  Goodioinv.  Mix^  the  Supreme  Court 
of  Illinois  e  hold  the  followin<?  lan<>:ua<2:e  in  reijard  to  the  effect 
of  a  judgment  and  sale  to  a  hona  fide  purchaser:  "The  com- 
plainant's counsel  make  a  point  here,  that  the  judgments 
confessed  bj  the  Wood  worths  in  favor  of  Fridley  were  irregu- 
lar, and  they  are  attacked  on  that  ground.  It  is  sufficient  to 
say,  an  objection  of  this  character  cannot  be  sustained  in  this 
suit.  Until  re\-ersed  for  irregularity  they  can  be  enforced,  and 
if  reversed,  a  Ijona  fide  jDi^rchaser  under  them  would  be  j^ro- 
tected,"  And  such  is  the  general  doctrine.  In  such  case  the 
defendant  in  the  judgment,  whose  property  is  thus  taken  from 
him,  must  look  for  his  remedy  over  against  the  plaintiff  who 
may  have  received  the  proceeds  of  it.  The  innocent  purchaser 
is  not  to  bear  the  loss. 

VI.     Ketukn  of  tue  Purchase  Money. 

§  902.  A  purchaser  of  lands  at  sheriff's  sale  has  no  claim 
on  the  plaintiff  in  execution  for  return  of  the  purchase  money, 
wlicre  the  sale  is  void  or  the  execution  debtor  had  no  interest 
in  the  property  sold;  and  he  cannot  maintain  a  suit  either  in 
law  or  equity  against  such  plaintiff  for  the  same.^ 

§  003.  jN'or  can  he  recover  for  the  same,  at  law,  against  the 
execution  debtor;  but  he  may  in  equity.^ 

§  904.  Such  purchaser  has  no  right,  however,  to  be  subro- 
gated into  the  place  and  rights  of  the  execution  plaintiff,  so  as 
to  thus  assume  the  character  of  a  judgment  debtor;  for  by  the 

^  Stinison  c.  Ross,  51  Mc.  55G;  Guitteau  «.  Wiseley,  47  111.  433;  McLean 
<?.  Brcmn,  11  111.  519;  Clark  v.  Pinney,  G  Cow.  297;  Hubbcll  v.  Broachvell, 
8  Ohio,  120;  Goodwin  v.  Mix,  38  111.  115;  Voorhees  ».  The  Bank,  10  Pet. 
4-19. 

«38I11.  IIG. 

=  Dunn  r.  Frazior,  8  Blackf.  433;  Julian  v.  Bcal,  2G  Ind.  220;  Hawkins  t. 
Miller,  2G  Ind.  173. 

*  Dunn  ».  Frazier,  8  Blackf.  432;  Hawkins  v.  Miller,  2G  Ind.  173;  IMcGee 
V.  Ellis,  4  Litt.  244;  Muir  v.  Crai.:?,  3  Blackf.  293;  Preston  -c.  Harrison,  9 
Ind.  1;  Pennington  t).  Clifton,  10  Ind.  172;  Richmond  «.  Marston,  15  Ind. 
134;  Julian  ®.  Beal,  2G  Ind.  220. 


SETTING    SALE   ASIDE.  ?>0'^ 

application  of  tlio  j^urcliasc  money  paid  by  liim,  the  judgment 
is  extingiiislicd  to  the  extent  of  tlie  amount  so  paid.^ 

§  905.  But  where  the  execution  phaintifF  is  liimself  the 
purcliaser,  and  the  sale  passes  no  title,  the  sale  being  void,  or 
the  property  not  being  subject  to  sale  on  execution  for  plaiu- 
tiflf's  demand,  it  is  proper  for  the  court  to  set  aside  the  sale; 
vacate  satisfaction  of  the  judgment  if  satisfaction  is  entered, 
and  allow  execution  anew  on  the  judgment.  So  also  where 
the  property,  though  belonging  to  the  defendant  at  one  time, 
had  ceased  to  be  his  by  reason  of  a  previous  sale  under  a  mort- 
gage which  had  priority  over  the  plaintiff's  judgment.^ 

'  Laws  V.  Tliompsou,  4  Jones,  Law,  (N.  C.)  104;  Richmond  v.  Marston, 
lo  Ind.  134. 

«  Watson  V.  Reissig,  24  111.  281;  Henry  d.  Keys,  5  Sneed,  488;  Ritcr  v. 
Ilensliaw,  7  Clark,  97;  Mason  v.  Thomas,  24  111.  285;  Lansing  v.  Quacken- 
bush,  5  Cow.  38;  Tudor  v.  Taylor,  26  Vt.  444;  Adams  v.  Smith,  5  Cow.  280; 
Ontario  Bank  v.  Lansing,  2  Wend.  2G0. 


CIIAPTEIl  XX. 

REDEMPTION. 

I.  The  Right  of  REDEMrxiON. 

II.  By  the  Execution  Debtor. 

III.  By  Judgment  Creditohs. 

IV.  By  ]\Iortgage  Creditors. 

V.    How  AND  When  to  be  Redeemed. 
VI.    Effect  of  Redemption. 

I.     The  Right  of  EEDEMFriox. 

§  90G.  The  i-iglit  in  law  to  redeem  lands  from  execution 
sale  exists  only  when  given  by  statute;  and  the  existence  ot 
this  right  in  each  particular  case  depends  upon  the  state  of  the 
law  in  that  respect  at  the  time  and  place  of  creating  the  lia- 
bility on  whicli  tlie  judgment  and  execution  were  obtained. 

§  907.  If  by  Law  the  right  exists  at  the  time  when,  and 
place  where,  the  liability  is  incurred,  then  the  right  remains 
within  the  same  state,  M'herever  therein  the  sale  be  made;  but 
if  the  right  docs  not  exist  when  and  where  the  liability  is 
incurred,  then  there  is  no  redemption  from  the  sale  made  at 
such  place,  although  in  the  m.eantime  a  redemption  law  be 
there  passed. ^ 

§  90S.  If,  however,  the  liability  which  is  the  foundation  ot 
tlie  iudo-m.ent  and  execution  be  created  in  one  state,  and  the 
judgment  and  sale  be  in  another,  then  the  right  to  redeem 
from  the  sale  will  be  regulated  and  controlled  by  the  law  of  the 
forum,  or  state  in  which  the  judgment  is  rendered,  as  it  is  at 
the  date  ot  the  judgment; 2  by  analogy  to  the  ruling  of  the 

'  Howard  v.  Bugbee,  24  How.  4G1 ;  Field  v.  Dorris,  1  Saced  (Tenn.)  548; 
Malony  v.  Fortune,  14  Iowa,  417;  Rosier  v.  Hale,  10  Iowa,  440;  Brouson  x. 
Kinscy,  1  How.  311. 

2  Ilutchens  v.  Barrett,  19  Ind.  lo;  Doc  v.  Collins,  1  Carter  (lud.)  24;  Doe 
tj.  Collins,  1  Smith  (Ind.)  08. 

(304) 


KEDEilFlION.  805 

courts  In  relution  to  valuation  laws  or  the  law  of  appraisement 
in  execution  and  other  lb  reed  sales.  ^ 

§  909.  Generally,  where  the  ripjht  of  redemption  from  exe- 
cution sales  exists,  in  favor  of  the  execution  debtor,  it  is  also 
given  l)y  statute,  if  not  exercised  by  him,  to  judgment  and 
mortoraij-e  creditors  of  such  debtor,  under  certain  limitations 
and  restrictions. 

§  010.  The  right  to  redeem  lands  from  execution  sale  may 
be  created  also  by  agreement  of  the  parties  independent  of 
the  statutory  right  to  redeem;-  and  will  be  enforced. 

§  911.  The  legal  right  of  redemption,  and  the  terms  thereof, 
are  as  diversilied,  perhaps,  in  the  different  states  as  the  states 
are  numerous.  Of  the  particulars  of  these  it  is  not  our  pur- 
pose to  treat;  they  will  be  found  by  reference  to  the  ever- 
changing  statutory  enactments. 

§  912.  But  the  rulings  of  the  several  courts  on  the  subject, 
of  a  general  character,  are,  in  like  manner  as  decisions  on  other 
subjects,  a  sort  of  common  law  and  guide  to  the  courts  and  pro- 
fession as  far  as  applicable  to  cases  arising,  and  are  therefore 
attempted  to  be  given.  In  Illinois  the  right  of  redemption  is 
extended  by  statute  to  sales  made  on  decrees  of  foreclosure  of 
mortgages  in  like  manner  as  from  sales  under  ordinary  process 
of  execution/  and  a  decree  of  foreclosure  in  that  state  ordering 
a  sale  without  redemption  is  erroneous,  and  will  be  reversed.^ 

§  913.  A  judgment  debtor  may  redeem  any  one  of  several 
separate  parcels  of  land,  sold  at  the  same  time,  but  separately, 
to  one  and  the  same  purchaser,  and  under  one  and  the  same 
execution.  Xot  to  allow  separate  redemption  (say  the  court) 
''would  bo  a  prodigious  hard  case."^ 

§  914.     As  a  means  of  enabling  delators  to  exercise  this 

'  Howard  v.  Eu.irbce,  24  Kow.  4G1. 

"^  Wallace  V.  AVilson,  3-1:  Miss.  (5  George)  357 ;  Southard  v.  Pope,  0  B. 
]\[onroe,  2G1 ;  Miller  v.  Lewis,  4  Comst.  553 ;  Lillard  v.  Cascj',  2  Bibb,  459. 

^  Farrell  v.  Palmer,  50  111.  274. 

*  Ibid.  In  this  case,  the  court,  speakinci:  of  the  Illinois  statute,  say: 
"This  section  was  intended  to  and  does  prohibit  sales  of  mort_s^a<iced  lands, 
under  a  decree  of  foreclosure,  without  redemption.  It  then  follows,  that 
the  decree  was  erroneous  in  ordering  a  sale  without  redemption." 

'  Robertson  v.  Dennis,  20  111.  813. 
20 


oOG  JUDICIAL   AXD   EXECUTION   SALES. 

rjglit  of  redeeming  separate  parcels  separately,  \ve  find  here 
an  additional  reason,  wjierever  lands  are  subject  by  statute  to 
redemption,  for  requiring  sales  of  separate  and  distinct  parcels 
to  be  made  on  separate  bids.  Otherwise  there  would  be  no 
standard  of  values  by  which  any  one  tract  could  be  separately 
redeemed,  and  the  debtor  would  be  subjected  to  the  oppression 
of  redeeming:  the  whole  number  of  tracts  tofrether,  and  in  case 
of  inability  so  to  do,  lose  the  whole.  The  same  reason  applies 
as  an  additional  objection  to  selling  real  and  personal  property 
collectively,  together.  The  one  being  redeemable  and  the 
other  not,  the  separate  values  relatively  bid  for  each,  could  not 
be  ascertained. 

II.     I3v  THE  Execution  DicuTOJi. 

§  915.  A  purchase  at  execution  sale,  under  a  written  agree- 
ment for  redemption,  is  not  a  waiver  or  a  merger  of  the 
statutory  right  to  redeem.  And  though  the  redemption  be 
limited  both  by  statute  and  by  the  agreement  to  one  year,  yet 
the  transaction  amounts  in  equity  to  a  mortgage,  and  the  exe- 
cution debtor  will  be  allowed  in  equity  a  reasonable  time  in 
which  to  redeem,  irrespective  of  the  one  year's  time  stipulated 
for  in  the  agreement. ^ 

§  91G.  And  such  a  promise  of  redemption  made  at  time 
of  bidding  as  influences  others  not  to  bid,  or  causes  the  debtor 
to  lessen  his  eflbrts  to  otherwise  protect  his  interests,  will  be 
enforced  in  equity,  though  the  time  limited  be  longer  than  tlie 
statutory  time  of  redemption. 2 

§  917.  To  consummate  the  redemption  in  such  case  the  ten 
per  cent,  allowed  by  law  can  only  be  exacted  up  to  the  end  of  the 
time  allowed  by  law  in  which  to  redeem,  and  six  per  cent,  per 
annum  afterwards. ^  i\nd  the  time  allowed  by  law  for  redemp- 
tion may  be  extended  by  uarole,  without  interfering  with  the 
statute  of  frauds."^ 


'  Wallace  v.  Wilson,  .34  ^liss.  8o7;  Southard  c.  Pope,  9  B.  Monroe,  '20i. 
2  Lillard  v.  Casey,  2  Bibb,  459. 
2  Southard  v.  Pope,  9  B.  Mon.  207. 
*  Griffin  i\  Coffey,  9  B.  Mon.  453. 


RKDKMl'TION.  807 

§  91S.  Yjy  receiving  a  part  of  tlic  redemption  money,  the 
purcliaser  is  precluded  from  treating  the  sale  as  absolute  after 
expiration  of  the  time  of  redemption,^ 

§  910.  The  execution  debtor  may  redeem  without  paying 
oft'  other  liens  of  the  execution  purchaser  in  Minnesota.- 

§  920.  But  a  contrary  rule  is  held  in  California. ^  And 
during  the  time  allowed  for  redemption,  the  purcliaser  in 
California  should  pay  the  taxes;  therefore  a  purchase  at  tax 
sale,  by  himself,  for  such  taxes,  will  avail  him  nothing.^ 

§  921.  So,  the  judgment  debtor  may  redeem,  (and  so  may 
Iiis  grantee,)  though  he  has  conveyed  awny  his  right  to  the 
h\nd.  lie  may  do  so  to  protect  his  conveyance,  and  so  may 
Ids  grantee  to  protect  his  purchase. ^ 

§  922.  The  right  of  the  debtor  to  redeem  is  not  affected  by 
selling  the  land  a  second  time,  either  by  the  same  plaintiff  or 
by  another;  and  if  the  same  plaintiff",  having  a  junior  judg- 
ment, sell  it  again,  then  a  judgment  debtor  redeeming  from 
the  first  sale  has  priority  of  rig]it.° 

§  923.  If  an  execution  sale  be  uidcnown  to  the  execution 
debtor,  and  fraudulent  means  be  used,  or  resorted  to  for  the 
purpose  of  jireventing  the  lact  from  coming  to  his  knowledge, 
and  the  proper  evidences  and  records  of  such  sale  be  not  made 
out  within  the  usual  time  of  redemption,  the  aggrieved  party 
may,  by  bill  in  chancery  filed  within  a  reasonable  time  in  a 
court  of  general  chancery  jurisdiction,  enforce  redemption.  In 
such  case,  twelve  months  at\er  the  discovery  of  the  fraud,  has 
been  deemed  a  reasonable  time  by  analogy  to  the  statute  of 
limitations  of  redemption,  and  this,  too,  against  tlie  assignee 
of  tlic  sheriff's  certificate  who  took  witli  notice."^ 

»  Snutli;u-a  r.  Pope,  9  B.  ]\ron.  2G4. 

»  Warren  v.  Fisli,  7  Minn.  432. 

3  Vandyke  v.  Herman,  3  Cal.  29j. 

*  Kelly  V.  Abbott,  13  Cal.  009. 

'  Harvey  v.  Spalding,  Ifi  Iowa,  097. 

«  Merry  v.  Bostuick,  13  111.  398. 

"  Briscoe  i\  York,  53  111.  4S4.  In  this  case.  Justice  Bkeese,  after  review- 
ing the  facts  and  statements  of  tlie  bill,  and  admitted  by  demurrer,  dis- 
poses of  the  case  in  the  following  terms:  "It  is  clear  that  he  (defendant,) 
purchased  the  certitioatc  with  notice  of  llie  rights  of  comi)luinant,  and 


30  S  JUDICIAL   AKD    EXECUTION   SALES. 

III.     ]3y  Judgment  Ckeditoks. 

§  024.  The  right  of  judgment  creditors  to  redeem  hmds  of 
tlieir  debtors  from  execution  sales,  when  given  by  law,  applies 
alike  to  creditors  whose  judgments  are  rendered  before  or  after 
the  sale.i 

§  025.  WJieii  the  redemption  is  made  by  a  judgment  creditor 
after  the  deatli  of  the  debtor  in  execution,  it  thereby  becomes 
the  estate  of  the  deceased  debtor,  and  the  title  vests  in  heirs 
subject,  as  other  lands,  to  judgment  debts.  The  remedy  of  the 
redeeming  creditor  is  to  sell  on  his  judgment,  and  the  amount 
paid  for  redemption  goes  to  his  credit  on  his  bid  if  the  pur- 
chase is  made  by  him;  and  if  by  another,  he  is  re-imbursed 
out  of  the  proceeds  of  sale,-  for  the  amount  as  part  of  his 
demand. 

§  020.  "  The  land  is  stricken  off  to  him  by  legal  intend- 
ment," say  the  court.  But  the  redeeming  creditor  cannot  issue 
execution  on  his  judgment  and  sell,  without  proper  j)roceed- 
iiiffs  first  taken  ajxainst  the  heirs.  On  a  mere  revival  of  the 
judgment  against  the  administrator,  no  lien  or  right  attaches 
to  levy  and  sell  the  land  on  ^  fieri  facias.  Such  revival  of  judg- 
ment against  the  administrator  without  notice  to  the  heirs  was 
holden  to  be  error  in  Tmmey  v.  Gates,  and  was  reversed.^  And 
a  judgment  so  revived  and  execution  sale  thereon  arcA'oid  and 
confer  no  title  on  the  purchaser.-* 

§  027.  If  a  judgment  creditor  purchase  the  certificate  of 
sale  while  the  time  is  yet  running  for  redem])tion,  he  will  be 
entitled  to  the  redemption  money  as  assignee,  in  case  any  other 
creditor  redeems.  And  if  the  creditor  so  redeeming  redeems 
on  a  judgment  which  is  junior  to  the  judgment  of  such  assignee, 

must  be  alTcctccl  with  all  the  equities  existing  against  the  original  pur- 
chaser. It  seems  to  us  the  bare  statement  of  the  case  is  the  strongest 
argument  which  can  be  made  in  support  of  complainant's  right  to  redeem 
from  the  sale,  at  least  within  twelve  months  after  the  papers  evidencing 
the  sale  were  actually  made  out." 

'  Couthway  v.  Berghaus,  25  Ala.  393. 

'  Turney  v.  Young,  22  111.  253;  Keeling  v.  Head,  3  Head.  (Tenn.)  592. 

»  Turney  v.  Gates,  12  111.  141 ;  Turney  v.  Young,  22  111  253. 

'  Turney  v.  Young,  23  111.  253. 


KEDEMPTIOX.  309 

sucli  junior  creditor  must  also  pay  the  amount  of  the  assignee's 
judgment,  i  The  assignee  of  a  judgment  creditor  has  the  same 
right  to  redeem  as  the  judgment  creditor  had. 3 

"§  928.  If  the  debtor  sell  his  equity  of  redemption,  and  tlie 
purchaser  fail  to  redeem,  a  creditor  under  a  junior  judgment 
may  redeem  after  twelve,  and  within  fifteeu  months,  in  Illinois. ^ 
§  929.  If  two  parcels  of  land  be  sold  as  a  whole,  on  execu- 
tion sale,  and  the  plaintiff  in  a  junior  execution  redeems,  and 
then  causes  tlie  parcels  to  be  levied  and  sold  separately  on  his 
junior  writ,  bidding  them  in  on  liis  judgment  for  a  sum  less 
than  what  he  paid  for  redemption,  he  will  be  regarded  in  law 
as  having  abandoned  his  riglits  under  the  redemption,  and  as 
selling  independent  thereof. ■* 

§  930.  Eedemption  of  lands  sold  at  a  master's  judicial  sale, 
cannot  be  made  by  payment  to  such  master  where  by  law  the 
payment  is  to  be  to  the  sheriff.  It  is  inoperative;  and  more- 
over the  sheriff  cannot  ratify  the  act  of  the  master  in  receiving 
the  money  and  give  validity  to  the  intended  redemption.-''' 

lY.       EeDEMFHOX    by    MoRTGACiE    CliEDrrOR. 

§  931.  In  California,  though  a  mortgagee  lose  his  priority 
by  failing  to  record  his  mortgage,  yet  he  may  redeem  under 
the  statute  from  execution  sale,  as  a  creditor;  but  if  he  fails  to 
do  so,  he  will  have  no  relief  in  equity.^  In  Iowa,  a  junior 
mortgagee,  who  is  not  made  defendant  to  the  senior  mort- 
crairee's  suit  of  foreclosure,  is  not  confined,  in  j-edceming,  to  the 
statutory  remedy  but  may  redeem  as  at  common  law,  or  fore- 
close his  mortgage,  making  the  ]-)urchaser  under  the  senior 
foreclosure  a  defendant  and  tendering  the  amount  of  his  pur- 
chase money.  *^ 

••  AYilson  V.  Conklin,  33  Iowa,  453. 
'  Sweczcy  v.  Chandler,  11  111.  445. 

8  McLogan  v.  Brown,  11  111.  519. 

9  Olliver  v.  Croswell,  43  111.  41. 
'  Littler  V.  Teople,  43  111.  188. 

s  Smith  V.  PKandall,  6  Cal.  47. 

^  Anson  v.  Anson,  SO  Iowa,  55 ;  Bates  v.  Ruddick,  3  Iowa,  533 ;  Ten  E^^cli 
D.  Cassad    15   Iowa,  534;    Veach  v.   Schattp,  3  Iowa,  194;    Ileinistrccl 


310  JUDiaAL    AND   EXECUTION    SALES. 

§  032.  If,  in  case  of  such  sale  under  the  proceedings  in 
foreclosure  of  tlie  senior  niort.c^af^ee,  tlie  purchaser  enter  into 
and  enjoy  the  benefit  of  the  mortgag-ed  premises  prior  to  fore- 
closure by  the  junior  mortgagee,  who  has  had  no  notice  as  a 
party,  then  the  purchaser  under  the  first  mortgage  Avill  be 
accountable  for  rents  and  profits  and  waste;  but  in  accounting 
will  be  entitled  to  interest  on  the  mortgage  debt,  upon  the 
principle  of  equitable  subrogation.^ 

§  933.  Where  a  case  exists  for  such  accounting,  the  junior 
mortgagee  will  not  be  held  to  a  strict  tender  or  bringing  into 
court  the  necessary  redemption  monej^  on  filing  his  bill.- 

§  934.  It  is  believed  to  be  sufficient  if,  in  such  case,  a 
readiness  to  redeem  be  averred  whenever  the  amount  required 
shall  be  ascertained  by  the  court.  More  especially  so  Vv-hen 
the  right  to  redeem  is  resisted, ^ 

§  935.  But  under  the  code  of  lovra  of  1S51,  which  gave  no 
redemption  from  mortgage  sales,  it  Avas  holden  that  mortgage 
creditors  and  other  lien  holders  who  had  been  made  parties, 
could  not  redeem  lands  sold  under  decree  of  foreclosure  after 
sale  to  satisfy  the  mortgage  decree.  They  had  already  had 
their  day  in  court.'' 

§  93G.  Partial  redemption  is  not  allowable.  "Who  redeems 
must  redeem  the  whole  interest  sold.  A  purchaser  of  a  part 
thereof  cannot  redeem  such  part  without  ])ayiiig  the  whole 
amount  and  redeeming  the  whole,  unless  such  part  was  sepa- 

r.  Winnie,  10  Iowa,  4S0;  Knowles  «.  Kablin  20  Iowa,  101.  But,  quere? 
If  the  junior  mortgagee  ought  to  be  subjected  to  redeem  also,  as 
ftgainst  tlie  costs  of  sucli  proceeding  of  the  first  mortgagor,  to  which 
he  was  not  made  a  party,  which  costs  might  liave  been  avoided,  after 
service,  by  redemption  of  tlie  junior  mortgagee  if  he  had  been  made  a 
party  to  the  proceedings. 

1  Anson  v.  Anson,  20  Iowa,  GO;  Ten  Eyck  v.  Cassad,  15  Iowa,  524;  Bene- 
dict u.  Oilman,  4  Paige,  58;  Bradley  v.  Snyder,  14  111.  207;  1  Waslib.  Real 
Prop.  5G5,  5G8,  G31 ;  Goodman  v.  White,  2G  Conn.  317 ;  Thompson  v.  Chan- 
dler, 7  Me.  (Greenlf )  377. 

"'  Laverty  v.  Hall,  19  Iowa,  52G. 

3  Laverty  v.  Hall,  19  Iowa,  52G;  Stap  v.  Phelps,  7  Dana,  (Ky.)  29G;  Hay- 
wood  V.  Munger,  14  Iowa,  517;  Eulherford  v.  Haven,  11  Iowa,  587. 

*  Cramer  v.  Redman,  9  Iowa,  114. 


KEDEilPTION.  311 

rately  sold,  and  tlicn  lie  can.     'Nov  can  redemption  Lc  made  as 
I'or  an  nndlvided  sLare.^ 

§  OoT.  If  redemption  is  of  tlic  mortgagee  as  ])nrchascr,  tlic 
party  redeeming  must  not  onlj  pay  the  amonnt  Lid  with  inter- 
est, but  if  the  bid  is  less  than  the  decree  he  must  also  pa/  oil 
the  deeeee;  he  cannot  redeem,  in  such  case,  by  simply  paying 
the  amount  of  the  ]3urchase  money  and  interest. ^  "Who 
claims  equity  must  do  equity." 

A^.       How    AND   AVUEN   TO    BE    MaDE. 

§  93S.  Redemption  can  only  be  made  in  that  which  is  by 
law  a  legal  tender,  in  money.  The  officer  is  not  bound  to 
receive  anything  else  as  bank  bills,  checks,  or  orders  for 
money.  In  some  cases  it  is  holden  that  redemption  cannot  be 
effected,  by  the  act  of  his  receiving  such  sul)stitutes  for 
money,  although  by  its  acceptance  he  renders  himself  liable 
for  money.  3 

§  1)39.  But  in  others  it  is  holden  that  if  such  instruments 
be  accepted  by  him  and  actually  converted  into  money,  so  that 
the  money  is  ready  for  the  holder  of  the  certificate  of  par- 
chase,  it  will  be  a  valid  redemption.^ 

§  040.  The  time  of  redemption  is  to  be  calculated  by  ex- 
chidin.g  the  first  day  and  including  the  last,  or  day  of  making 
payment.  5 

§  9-11.  It  being  a  statutory  right  the  time  in  which  it  is  to 
be  exercised  in  the  different  states  Avill  depend  on  the  statutory 
provisions  in  that  respect.     As  a  general  rule  it  may  be  made 

'Street  V.  Ileal,  IG  Iowa,  C8;  Knowlos  v.  Eablin  20  Iowa,  101; 
Massie  t?.  Wilson,  IG  Iowa,  090,  300,  397;  Taylor  i\  rorter,  3  jMass.  3.j5; 
GiliHon  V.  Creshoi-c,  5  Pick.  14G;  Smith  v.  Kelly,  27  Uc.  237;  Johnson  t. 
Candage,  31  Me.  28. 

-  Knowlcs  V.  Rablin,  20  Iowa,  101,  104;  Johnson  v.  Harmon,  19  Iowa,  08; 
Wliite  V.  Hampton^  13  Iowa,  359. 

"  Dougherty  v.  Hughes,  3  G.  Greene,  92;  Thornc  v.  San  Francisco,  4  C.'al. 
127 ;  People  v.  Baker,  20  Wend.  G02. 

*  Webb  V.  Watson,  18  Iowa,  537;  Hall  v.  Fisher,  9  Barb.  Sup.  Ct.  17. 

^Tueclier  v.  Iliatto,  23  Iowa,  529;  Bigelow  v.  Wilson,  1  Pick.  485; 
Sinims  v.  Hampton,  1  S.  &  R.  411;  Gillespie  v.  White,  IG  Johns.  117;  Rund 
V.  Rand,  3  N.  II.  2G7;  Windser  v.  China,  4  Grecnl.  298 


012  JUDICIAL    AXD    EXECUTION   SALPS. 

'*  at  any  time  before  tlie  close  of  tlie  last  day  allowed  by  law 
for  tliat  pni-pose,"  or  of  any  day  witliin  the  time  allowed  by 
law  for  redemption.  "Business  hours  are  not  in  tliis  respect 
regarded."^ 

§  942.  Redemption  b}^  an  unauthorized  person,  assuming 
to  act  as  agent,  will  be  valid  if  ratified  or  approved  by  the 
principal. - 

§  943.  In  redeeming,  strict  compliance  witli  the  statute  is 
necessary,"  unless  such  compliance  be  v.-aived.^ 

§  944.  In  Hughes  v.  Fecter'^  the  Supreme  Court  of  Iowa 
lay  down  the  rule  "  that  the  statutory  right  to  redeem  property 
from  execution  sale  within  one  year,  cannot  be  extended  by  any 
act  of  the  party  claiming  tliat  right,  such  as  a  suit  to  redeem, 
or  the  like,  without  more.     Such,  too,  is  the  general  doctrine. 

§  045.  But  where  the  property,  as  in  the  case  of  Ilmjhes  v. 
Feeter,  brought  but  a  small  proportion  of  its  value,  and  where 
that  value  dej^endcd  on  a  protracted  suit,  calculated  to  prevent 
a  sale  at  a  fair  price,  if  redeemed  and  sold  again  during  its 
pendency,  and  where  suit  was  commenced  in  good  faith  before 
redemption  expired  to  taste  the  loiia  fides  of  the  sale,  the 
court  enlarged  the  time  of  redemption  after  the  expiration  of 
the  statutory  period.'' 

§  94G.  From  an  execution  sale  of  several  tracts  of  land 
separately  made  on  the  same  v.'rit,  the  owner  may  redeem  either 
of  them  separately,  whether  they  be  bought  by  one  or  by  sev- 
eral different  persons.'' 

§  947.  If  the  redemption  is  made  of  the  sheriff  by  a  judg- 
ment creditor,  it  has  been  held  in  Illinois  that  the  payment 
should  be  accompanied  by  an  execution  delivered  to  the  officer 
on  the  judgment  of  such  redeeming  creditor.^ 

'  Ezfarte  Bank  of  ]\ronroc,  7  Hill,  177;  Tueclicr  -y.  Iliatte,  23  Iowa,  529. 
«  Tuechcr  v.  Hiattc,  23  Iowa,  529;  Blackw.  Tax  Titles,  501,  504,  505. 
2  E.v  pnrte,  Bank  of  Monroe,  7  Hill,  177 ;  Hall  v.  Thomas,  27  Barb.  (N.  Y.) 
55;  Siliimanw.  Wing,  7  Hill,  159. 

*  Bank  of  Vcrgenncs  v.  Warren,  7  Hill,  91 

*  ITuglics  V.  Feeter,  23  Iowa,  547. 

*  Ibid. 

'  Robertson  v.  Dennis,  20  111.  313. 
8  Stone  V.  Gardner,  20  111.  304. 


KEDKMITIO^'.  313 

§  94S.  It  13  also  lield  in  Illinois  that  tlio  money  may  bo 
paid  to  the  sheriff  or  to  the  purchaser.  ^ 

§  040.  From  a  pnrcliase  by  the  trnstce  of  i\  fame  covert^ 
tlie  redemption,  in  Alabama,  is  made  by  payment  to  snch 
trnstee  and  not  to  the  cestui  que  trnst.^  Otherwise  if  the 
trustee  is  non-resident. •"• 

§  050.  The  rceei])t  by  the  sheriff  of  depreciated  paper  as 
money  from  the  purchaser,  affords  no  ground  for  the  owner  or 
others  to  redeem  by  paying  like  currency,  or  its  value,  in  par- 
money,     lie  must  pay  the  full  amount  in  good  money.^ 

§  051.  If  the  purchaser  pays  oft"  a  prior  lien  on  the- prem- 
ises the  amount  must  be  reimbursed  to  him  by  adding  the 
same  with  interest  to  the  redemj^tion  money, ^ 

§  052.  Oversight,  neglect,  or  mere  ignorance  of  the  law  is 
not  such  excuse  for  omitting  to  redeem  as  will  call  for  relief  in 
equity.'"' 

§  053.  It  is  held  in  l*^ew  York  (Moega:n-,  Justice,  dissenting,"^ 
that  under  the  statute  of  1847,  requiring  redemptions  from 
execution  sales  of  lands  on  the  last  day  of  the  flfteeii  months 
allowed  by  law  in  which  to  redeem,  to  be  made  at  the  sherilT's 
office,  that  redemption  at  the  dwelling  house  of  that  ofticer, 
between  nine  and  ten  o'clock  in  the  night  of  that  day,  the 
party  redeeming  have  failed  to  find  the  officer  during  the  day 
at  the  sheriff's  office,  is  illegal  and  void,  for  non-conformity  to 
the  letter  of  tlie  act  requiring  the  redemption  to  take  place  at 
the  sheriff's  office  when  the  conflicting  claimants  to  redeem 
nn'ght  respectively  redeem  from  each  other.  The  court  hold 
that  to  make  the  redemption  valid,  the  statute  must  be  strictly 
conformcd  to.'' 

'  Stone  V.  Garancr,  20  111.  304;  Robertson  v.  Dcunis,  20  111.  013. 

'•  Baninger  v.  Burke,  21  Ala.  7G5. 

'  Coutby  r.  Bergbans,  25  111.  393. 

^  Scliotit'ld  V.  Bessenden,  15  111.  78. 

8  Cmitbway  v.  Bergans,  25  Ala.  393. 

6  Canipaii  v.  Godfrey,  18  Micb.  27. 

''  Gilcbrist  ij.  Comfort,  34  N.  Y.  235.  In  this  case  the  court  say:  "As 
the  law  now  exists  a  redemption  by  a  creditor  on  the  last  day  of  the  fifteen 
months,  to  be  valid  and  effectual,  must  be  made  at  the  sheriff's  office. 
The  statute  is  plain  and  peremptory  in  this  respect  and  cannot  be  dis- 


31  J:  JL-DICLIL   AND    EXECUTION    SALES. 

§  054:.  Yv''c  are  not  to  imclerstancl  that  the  objection  on 
^vlucll  the  case  of  Gilchrist  v.  Comfort  turned  was  tliat  the 
redemption  was  made  in  the  night  time;  for  in  that  there  is 
notliir.g  objectionable  in  itself.  Business  hours  in  reference  to 
redemption  are  not  regarded  in  law.^  But  it  was  objection- 
able, under  the  circumstances,  in  like  manner  as  was  the  place 
of  redeeming,  inasmuch  as  it  put  difficulties,  if  not  impossi- 
bilities, in  the  way  of  such  other  judgment  creditors  who, 
under  the  statute,  had  a  right  in  like  manner  and  at  the  same 
time  to  redeem  of  the  creditor  first  redeeming,  and  so  on  in 
turn  from  one  to  another  so  long  as  there  remained  judgment 
creditors  willing  to  redeem,  or  to  bid  at  what  is  aptly  tei-med 
an  "  auction  among  the  creditors  of  the  land."  The  real  point 
of  objection  was  that  the  redemption  was  not  made  at  the  office 
of  the  sheriff  instead  of  at  his  house.  Its  being  in  the  night 
time  gave  weight  to  the  objection  in  a  moral  point  of  view,  in 
so  much  as  it  tended  to  prevent  simultaneous  redemptions  by 
other  creditors. 

YI.     Effect  of  TtEDEMraox. 

§  955.  The  effect  of  redemption  from  execution  sale,  by  the 
execution  debtor  or  his  assigns  or  grantee,  is  merely  to  tei-mi- 
nate  the  sale  and  restore  the  property  to  its  original  condition. 
It  confers  no  new  right.  If  the  sale  was  made  for  a  part  only 
of  the  judgment  debt,  the  land  becomes  by  such  redemption 
again  liable  for  the  residue  of  the  judgment.  And  so  likewise 
it  becomes  thereby  liable  to  sale  on  any  other  intervening  or 
subsisting  judgment  lien  older  in  date  than  the  transfer  or 
assignment  made  by  the  judgment  debtor,  to  the  same  extent 
as  if  the  judgment  debtor  had  not  disposed  of  his  right  to 
redeem,  or  his  interest  in  the  estate. ^ 

obeyed  or  (lisrcg.irdcd.  It  is  an  express  and  positive  requirement,  and 
must  be  strictly  followed,  or  nothing  is  accomplished."  See  Ex  jxtrtc, 
Bank  of':Monroe,   7  Hill,  177;  Hall  v.  Thomas,  27  Barb.  55. 

'  Ex  'parte,  Bank  of  IMonroe,  7  Hill,  777;   Tuccher  v.  Hiattc,  23  Iowa,  529. 

*  Sticn  V.  Chambless,  18  Iowa,  474;  Crosby  ■;;.  Elkader  Lodge,  IG  low:\, 
300;  Curtis  v.  Millard,  14  Iowa,  128;  Warren  v.  Fish,  7  Minn.  432;  Hays 
V.  Thode,  18  Iowa,  51,  52;  Titus  v.  Lewis,  3  Barb.  70. 


IJEDEMITIOX.  315 

§956.  In  Steui  V.  Chamlless^  the  court  say:  "The  pur- 
cliase  by  Cluimbless  of  Banford's  right  to  redeem  tlic  pi-operty 
from  the  sale  to  Dougherty,  and  to  Lemp  aud  Sells,  conferred 
upon  him  no  other  or  better  right  than  Banford  himself  pos- 
sessed, and  the  legal  effect  of  a  I'edemption  by  him  is  the  same 
ris  if  Banford  himself  had  redeemed,  leaving  the  property  sub- 
ject to  be  taken  in  satisfaction  of  any  subsisting  lien  or  judg- 
ment thereon." 

§  957.  The  same  court,  in  Crosbi/  v.  Elhader  Lodge,'^  hold 
the  followius:  lanmiaire:  "If  the  debtor  or  his  grantee  redeem 
land  which  has  been  sold  in  part  satisfaction  of  a  subsisting 
judgment,  the  property  at  once  becomes  liable  to  satisfy  the 
unpaid  balance  of  the  execution  from  the  moment  of  such 
redemption." 

§  95S.  Still  earlier,  in  Curtis  v.  Jfillard,^  the  same  court 
review  the  whole  subject  and  assert  the  rule  to  be  that  if  dur- 
ing the  interval  between  the  sale  on  execution  and  delivery  of 
the  sheriff's  deed  to  the  purchaser  other  judgments  be  rendered 
against  the  debtor,  where  judgments  are  liens,  that  they  attach 
us  liens  against  the  execution  debtor's  interest  in  the  premises 
so  sold,  and  that  if  there  be  redemption  from  such  sale,  the 
land  is  liable  to  sale  on  execution  to  satisfy  such  subsequent 
judgments.  "That  the  legal  estate  of  the  judgment  debtor 
is  not  divested  by  the  sale  of  his  land  under  execution  until 
after  expiration  of  the  time  for  redemption  and  the  title  has 
vested  in  the  purchaser  by  deed  from  the  sheriff."  It  thei-e- 
fore  follows  that  judgments  rendered  within  that  time  attach 
as  liens  to  the  premises,  subject  to  be  defeated  by  failure  to 
redeem  and  by  execution  and  delivery  of  the  sheriff's  deed. 

§  959.  In  the  same  case  Curtis  v.  JliUfird,  the  doctrine  is 
broadly  asserted  by  the  court  that  "  the  purchaser  of  lands  sold 
on  execution  acqnires  by  his  purchase  no  more  than  a  lien  upon 
the  lands  for  the  amount  of  his  bid,  and  interest  during  the 
time  allowed  for  redemj^tion.  He  acquires  no  right  or  estate 
upon  which  he  could  maintain  ejectment,  or  which  could  be 

'  IS  Iowa,  475,  47G. 

••'  IG  Iowa,  40."). 

3  14  Iowa,  129,  130. 


31G  JUDICIAL   AND   EXECUTION   SALES. 

levied  upon  and  sold  for  liis  debts;"  that  it  is  simply  an 
inchoate  and  conditional  right  to  an  estate,  "  liable  to  bo 
defeated  at  any  time  within  one  year  by  the  payment  of  the 
purchase  money  and  interest."     That  is,  by  redemption.  ^ 

§  9G0,  A  judgment  creditor,  or  other  creditor,  in  redeem- 
ing, is  substituted  to  the  execution  j)urchaser's  rights.  He 
acquires  no  new  or  better  rights  than  the  right  of  those  from 
whom  he  redeems.  Therefore,  if  the  purchase  is  made  under 
a  void  execution,  or  an  execution  issued  on  a  judgment  which 
has  been  paid,  or  where  the  execution  itself  has  been  satis- 
fied, then  the  purchaser  at  the  execution  sale  having  obtained 
nothing  b}^  his  purchase,  nothing  inures  to  the  party  redeem- 
ing, by  virtue  of  the  redemption.^  Thus  it  folltjws,  that  a 
creditor  redeeming  from  a  void  execution  sale  takes  nothing, 
and  a  snbsecpient  execution  sale,  in  his  own  behalf,  in  pursit- 
ance  of  such  redemption,  under  the  Illinois  statute,  is  also 
void.-" 

§  001.  From  sales  made  in  a  loyal  state  during  the  war  of 
rebellion,  of  lands  belonging  to  a  citizen  and  resident  of  a  state 
in  rebellion,  where  no  negligence  in  redeeming  attaches  to  the 
judgment  debtor,  the  debtor  or  his  representatives  will  in 
equity,  by  analogy  to  the  statute  of  limitations,  be  allowed 
one  year  in  which  to  file  their  bill  to  redeem,  after  the  obsta- 
cles caused  by  the  M'ar  have  ceased;  and  where,  in  such  case, 
the  sheriff's  deed  has  intervened,  the  proper  course  is  to  apply 
by  bill  to  the  court  of  ordinary  chancery  jurisdiction  for  relief. 
If  in  the  meantime  the  judgment  debtor  dies,  redemption 
may  be  thus  effected  by  a  bill  on  the  part  of  his  heirs,  but 
n])on  terms.  Not,  however,  as  to  such  portion  of  the  lands  as 
may  have  passed  by  conveyance  to  innocent  purchasers."* 

»  14  Iowa,  130. 

2  Keeling  v.  Heard,  ?.  Head  (Tenn.)  592. 

'  Joluison  r.  Eaker,  38  111.  98.  Of  such  sales  the  Supreme  Court  say: 
"Tliey  arc  both  void,  because  they  fail  to  conform  to  and  are  in  violation 
of  the  statute.  And  it  follows,  as  the  judgment  is  utterly  void,  that  such 
a  sale  under  it  would  be  equally ;  and  being  void,  it  is  not  such  a  judg- 
ment as  the  statute  contemplated,  as  the  basis  of  a  sale  from  which  a 
junior  judgment  creditor  might  redeem." 

Mlixer  i-.  Sibley,  53  111.  Gl;  Hanger  •?).  Abbott,  G  Wall.  533;  Stiles  r. 
Easloy  51  111.  275. 


PART    FIFTH. 
EXECUTION  SALES  OF  FEESONAL  FEOFEETY. 


CIIAFTEE    XXF 

I.    Tme  Wi;it. 
II.     Its  Lien. 
III.    What  may  ije  Sold. 

L    TiiK  WiiiT. 

§  002.  Tlio  writ  o^  fieri  facias  is  tlie  j^rocess  on  wliieli  exe- 
cution sales  of  personal  property  were  made  at  common  law.^ 

§  903.  It  is  a  common  law  writ,  and  is  directed  to  tlic 
sheriff  of  the  county,  by  his  official  title,  commanding  him, 
that  of  the  goods  and  chattels  of  the  defendant,  to  be  found  in 
his  bailwick,  that  is  in  his  county,  he  levy  and  cause  to  be  made 
a  sum  of  money  mentioned  in  the  writ,  and  to  have  the  same 
before  tlie  court  on  the  return  day  of  the  writ." 

§  ^Q-^.  In  olden  time,  in  England,  when  tlie  monarch  held 
the  court  in  person,  the  command  of  the  writ  was  to  have  the 
money  in  court,  before  the  king. 

§  9G5.  Sales  of  personal  property,  in  the  American  States, 
to  satisfy  judgments  at  law,  are  usually  made  on  this  writ,  or 
one  closely  assimilated  to  it,  and  which,  in  some  states,  also 
run  against  tlie  lands  and  tenements  of  the  execution  debtor, 
cither  absolutely  or  as  an  alternative,  in  case  sufficient  goods 
and  chattels  be  not  found  whereof  to  satisfy  the  writ. 

§  {)Q>Q.  Wliatever  the  form  of  the  writ  may  be,  it  must  siih- 
stantialbj  conform  to  the  judgment  upon  which  it  issues.  If  it 
does  not  it  M'ill,  on  motion,  be  quashed. ^ 

'  0  Bac.  Abt.  "Execution,"  198 ;  3  Black.  Com.  417 ;  3  Tidd'a  Prac.  913,  917 
^2  Tidd's  Prac.  !)!;3;  8  Black.  Com.  417. 
*  Reese  v.  Burts,  ;>9  Geo.  ."jO"). 


318  JUDICIAL   Als^D   EXECUTION   SALES. 

§  9G7.  A  slight  variance,  liowcvcr,  ^vill  not  vitiate  the  writ, 
tliongli  it  may  be  subject  to  be  quashed  therefor  before  sale 
thereon;  but  if  it  be  not  quashed,  and  sale  is  made  thereon, 
the  sale  will  be  valid,  if  possession  of  the  property  be  delivered 
to  the  purchaser.  1 

§  i)G8.  If  property  be  not  found  on  \vhich  to  levy  the  Jieri 
facias,  or  its  kindred  writ  as  modified  by  statute,  within  the 
lifetime  of  the  writ,  then,  on  return  thereof,  the  proper  course 
is  to  sue  out  an  alias  fieri  facias,  and  so  on  in  succession,  as  a 
like  necessity  occurs,  ^i?luries,  and  alias  j>luries;  but  if  there 
be  a  levy  effected,  and  from  any  cause  not  affecting  the  validity 
of  the  writ  or  levy,  the  writ  be  returned  without  sale  of  the 
property  levied,  tlien  an  order  for  the  issuing  of  a  writ  oi  ven- 
ditioni exponas  is  to  be  obtained,  and  the  latter  ^VTit  thereupon 
issues  to  the  officer  commanding  him  to  sell  the  property  so 
levied  on  the  former  writ  oi  fieri  facias  and  remaining  unsold. 
This  writ  of  venditioni  exponas  confers  no  new  or  additional 
authority  on  the  officer,  but  commands  and  compels  him  to  do 
that  which  he  was  before  authorized  and  commanded,  by  the 
writ  o'l  fieri  facias,  to  do." 

§  ^(Ji).  In  Alabama,  and  some  other  of  the  States,  if  execu- 
tion issue  during  defendant's  lifetime,  and  be  not  executed, 
tlien  an  alias,  ox  ijluries,  as  the  case  may  be,  may  issue  after 
his  death,  whereon  personal  effects  may  be  levied  and  sold,  (but 
not  the  realty  without  revival  of  the  judgment,)  the  lien  of  the 
first  writ  having  attached  to  such  personalty  during  defendant's 
life  time.^^  If  the  judgment,  however,  be  against  two  or  more 
defendants,  and  one  die,  execution  cannot  go  as  against  the 
realty  without  revival  of  scire  facias,  \i\\i  may  as  to  the  per- 
sonalty of  the  survisors.'^ 

§  070.  The  writ,  under  all  circumstances,  must  correspond 
to  the  judgment  substantially;  and  if  one  defendant  be  dead, 
it  must  nevertheless  run  as  against  them  all,  but  can  only  be 
executed  against  the  personal  property  of  the  survivor  or  sur- 

'  Williams  v.  Brown,  28  Iowa,  247;  Hunt  c.  Loucks,  38  Cal.  372. 

"^  Johnson  'c.  Lynch,  3  Bibb.  34'5. 

'  Erwin  b.  Dundas,  4  How.  58. 

*  Erwia  r.  Dundas,  4  How.  58;  Ilildrcth  r.  Thompson,  IG  Mass.  193. 


THE   AVIUT.  ^  319 

vivors.  Some  times,  liowever,  on  suggestion,  the  decitli  of  one 
of  tlie  defendants  of  record,  the  writ  ^vill  be  ordered  against 
the  survivor  or  survivors  alone. ^ 

§  971.  The  alteration  of  an  execution  in  any  manner  ^vhat- 
ever,  after  it  has  passed  out  of  the  hands  of  the  clerk,  destroys 
its  vitality  and  renders  it  void.  All  j^roceedings  thereon  are 
in  like  manner  void.  The  alteration  of  process  ^vill  not  he 
tolerated  by  the  law,  or  courts,  under  any  circumstances. ~ 

§  073.  In  the  case  here  cited,  Walkek,  Justice,  lays  down 
the  rule  as  follows,  and  no  doubt  correctly:  "If  the  execution 
were  altered  in  a  material  part,  it  would  thereby  become  void. 
Courts  can  never  pcr.nit  such  alterations  of  their  process, 
thereby  endangering  the  rights  of  parties  as  effectually  as  any 
other  species  of  forgei-y.''  If  wrong,  it  should  be  returned, 
that  by  leave  it  can  be  amended,  or  a  legal  writ  issue. 

II.     Its  LiKX. 

§  973.  At  common  law,  this  writ  oi  fieri  facias  bore  rela- 
tion to  its  date,  usually  called  the  teste ;3  and  bound  the  goods 
and  chattels  of  the  defendant  from  that  time,  or  such  thereof 
as  were  subject  to  levy,  by  wliich  means  it  became  a  lien  from 
its  date."^ 

§  974.  Cut  this  relation  is  taken  away  in  England  by  statute, 
and  with  it  the  lien,  so^f  as  to  purchases  intermediate  between 
the  teste  of  the  writ  arid  the  time  of  its  actual  delivery  to  the 
sheriff;  and  is  made  to  commence  only  on  such  delivery  as 
against  sucli  purchaser,  so  as  to  save  intervening  bona  fide 
sales;  the  lien  still  remained,  however,  against  the  goods  in 

'  Erwin  v.  DundaFs,  4  How.  58,  79 ;  Johnson  v.  Adair,  3  Bibb.  384.  In 
the  case  last  cited,  although  the  Avrit  was  quashed,  j^et  it  was  for  other 
cause  than  issuing  after  the  death  of  one  defendant.  The  objection,  on 
this  point  was  in  effect  overruled, 

=>  White  «.  Jones,  38  HI.  159,  1G4. 

3  1  Black.  179;  Erwin  v.  Dundas,  4  How.  58;  Dodge  v.  ]\Iack,  23  111.  95, 

*  3  Tidd's  Prac.  914;  3  Bouv.  573,  574;  Arclib.  Civil  Plds.  title,  "Execu- 
tion," 1  Hay.  (N.  C.)  39G ;  Erwin  t\  Dundas,  4  How.  58,  73 ;  Dodge  t.  Mack, 
22  111.  95. 


C20  JUDlCIAl,    A2S'D    EXECUTION    SALES. 

the  liands  of  tlie  debtor  liimself,  and  ovcrreaclics  otlicr  v/rits 
subsequently  issued  and  levied. ^ 

§  975.  In  some  of  the  American  States,  as  in  England,  at 
common  law,  this  lien  of  the  writ  of  execution,  in  the  hands 
of  the  sheriff,  attaches  to  the  goods  and  chattels  of  the  defendant 
ia  the  bail  wick,  or  county,  from  the  teste  of  the  writ.-* 

§  970.  In  others  the  lien  attaches  only  by  the  levy;^  while 
in  yet  another  class,  the  statute  of  29tli,  Charles  the  Second, 
is  either  followed  or  is  substantially  re-enacted.  In  this  latter 
class  the  lien  attaches  as  against  the  debtor,  by  delivery  of  the 
writ  to  the  proper  officer  for  service,  but  subject  to  Ijona  fide 
purchases  made  before  levy.*' 

=  Stilt  29,  Car.  ii.  2  Tidd's  Prac.  914,  915;  Envia  v.  Dundus,  4  Ilfnv.  58; 
Woodward  v.  Hill,  3  ]McCord,  241. 

*  Ilardina:  -o.  Spivcy,  8  Ired,  G3;  Union  Bank  v.  McClung,  9  Humph.  91 ; 
Barnes  v.  Hayncs,  1  Swan,  304;  Erwin  x.  Dundas,  4  How.  58,  75. 

5  Beeves  v.  Sebem,  IG  Iowa,  234;  Field  «.  ]\lilburn,  9  Mo.  493;  Gilkcy  v. 
Dickson,  2  Hawks,  341. 

«  Bay  c.  Birdscye,  5  Denio.  G19,  024;  .Jolinson  «.  McLean,  7  Blackf.  510; 
Marshall  t\  Cunningham,  13  111.  20;  Furlong  v.  Edwards,  3  ,Md.  99;  Tabb 
V.  Harris,  4  Bibb,  31 ;  McMahou  v.  Green,  12  Ala.  71 ;  Newel  w  Siblej-, 
Dodge,  Adm'r  'o.  Mack,  22  111.  93,  95.  On  this  subject  we  avail  ourselves 
of  the  learned  opinion  of  the  Iowa  Supreme  Court,  by  Dillox,  Justice,  in 
Beeves  &  Co.  v.  Seborn,  from  which  we  make  the  following  extract:  "The 
defendant  now  claims  tliat  the  execution,  through  not  levied,  was  a  lien 
upon  the  goods  and  chattels  of  the  debtor.  J^e  are  aware  of  no  decision 
in  this  state  fixing  the  time  when  the  goods^«u  execution  defendant  arc 
Ijound,  whether  from  the  teste  of  the  wr^Bfr  from  its  delivery  to  the 
ollicer,  or  from  actual  levy  only.  This  suWct  is  now  settled  by  statute, 
which  provides  that  execution  shall  biud"n]y  from  the  time  of  levy. 
(Laws  18G2,  p.  231.)  This  act  was  not  in  force  at  the  date  of  tlie  transac- 
tion now  in  question,  and  hence  it  becomes  necessary  to  state  what  the 
law -svas  before  the  act  was  passed.  At  common  law  the  writ  of  fi.fa. 
bound  the  chattels  of  the  defendants  from  its  teste.  3  Bouv.  Inst.  573,  574, 
Areh.  Civil  PL  title,  'Execution,'  1  Hay.  (N.  C.)  396;  2  Id.  57;  2  Hawkcs, 
232;  3  Id.  290.  As  this  had  the  unjust  cfTect  to  overreach  and  defeat  sales 
made  even  before  the  writ  was  delivered  to  the  sheriff,  it  was  remedied  by 
llie  statute  of  29  Charles  II.  which  made  the  writ  binding  from  the  time 
of  its  delivery  to  the  sheriff  to  be  executed.  We  have  very  few  if  any 
decisions  as  to  Avhat  the  common  law  in  this  country  is,  because  the 
subject  is,  in  most  of  the  states,  regulated  by  express  statute.  Thus,  in 
Xev,'  York,  the  statute  of  29  Charles  is  re-enacted,  expressly.  Bay  v. 
Bird.seye,  5  Denio,  G24;  see,  also,  12  Johns.  403.  So  in  Indiana,  7  Blackf. 
501 ;  4"ld.  49G;  4  Ind.  255.    So  in  Illinois,  13  111.  20;  22  Id.  93.    So  in  Ken- 


THE  ^VKIT.  321 

§  977.  Tlic  lien  of  tlic  original  execution  is  kept  alive  by 
issuing  of  an  alias,  ov  pl'uries,  or  other  subsequent  writ  rest- 
ing on  the  original,  in  proper  time,  and  will  cut  off  process 
issued  during  the  intervening  period  between  the  time  of 
issuing  such  subsequent  writ  and  the  issuance  of  its  original. ^ 

§  978.  In  Kentucky  the  death  of  the  defendant  in  execution 
abates  the  writ  and  no  further  proceedings  can  be  had  thereon; 
but  it  does  not  discharge  the  lien  of  the  levy,  if  there  be  a 
levy,  and  equity  will  enforce  the  same.^ 

§  979.  It  is  held  in  Illinois  that  the  death  of  the  defendant 
after  the  teste  of  the  execution  and  before  it  comes  to  the  hands 
of  the  officer,  destroys  its  vitality,  and  that  no  valid  levy  can 
be  made  thereon ;3  but  it  is  there  holden  also,  that  the  lien  of 
the  writ  is  lixed  by  delivery  to  the  officer,  and  that,  therefore, 
if  defendant  die  after  the  writ  comes  to  the  officer's  hands, 
that  such  officer  may  go  on  and  execute  the  writ  by  levy  and 
sale."* 

tucky,  1  Litt.  St.  540 ;  4  Bibb,  31 ;  2  J.  J.  Marsh,  421.  So  in  Florida,  4  Flor. 
126;  and  Maryliiiul,  3  Md.  09 ;  and  Alabama,  12  Ala.  71 ;  Id.  247;  18  Id. 
387.  In  Missouri,  as  between  two  officers  the  first  levy  holds,  though  the 
writ  was  delivered  last.  Field  v.  IMilburn,  9  Mo.  492.  In  California  and 
Ohio,  by  statute,  the  lien  is  from  the  levy  only.  In  North  Carolina,  where 
the  common  law,  as  a  body,  is  adopted,  the  lien  is  from  the  teste,  (8  Ire.  G3, 
and  cases  supra,)  and  Tennessee  follows  North  Carolina,  (9  Humph.  91 ;  1 
Swan,  304.)  In  the  absence  of  statute,  wc  must  conclude  that  the  execu- 
tion is  a  lien,  either  from  its  teste,  as  at  common  law,  or  only  from  actual 
levy.  "We  do  not  feel  bound  to  adopt  the  unreasonable  and  unjust  rule 
of  the  ancient  common  law,  so  unjust,  indeed,  that  it  had  to  be  remedied 
by  statute.  It  docs  not  accord  with  the  policy  of  our  laws,  nor  harmonize 
with  the  decisions  on  kindred  subjects.  The  whole  current  of  judicial 
decisions,  in  this  state  has  ever,  and  we  think  most  wisel}^  been  against 
secret  constructive  liens,  especially  when  these  are  set  up  against  pur- 
chasers.  Barney  v.  McCarty,  15  Iowa;  Same  v.  Little,  Id. ;  and  Cumming.s 
V.  Long,  Id.;  Jones  v.  Pcasley,  3  Green, 52;  Gimble  v.  Acklc3^  12  Iowa,  27. 
And  we  are  not  mistaken  in  saying  that  the  professional  sentiment  in  this 
state  has  always  been  that  executions  were  not  liens  on  chattels  until 
actual  levy.  This  was  the  opinion  of  the  court  below,  and  in  this  respect 
there  is  no  error."    (Reeves  &  Co.  v.  Seboru,)  IG  Iowa,  23G,  237. 

'  Brasfield  v.  Whittakcr,  4  Hawks,  309. 

^Ilolemau  v.  Ilolcman,  2  Bush.  (Ky.)  514;  Wagner  v.  McCoy,  3  Bibb, 
198. 

'  The  People  v.  Bradley,  17  111.  485. 

'  Dodge  V.  Mack,  22  III.  93,  9G. 
21 


322  .lUDICTAL   AXD   EXECCTrO^•    SALES. 

III.     What  siay  be  Sold. 

§  9S0.  On  the  ^vl•it  of  fieri  facias,  at  coininon  law,  in 
England,  cvcrytliing  tliat  is  chattel  belonging  by  legal  title  to 
the  defendant,  except  necessary  wearing  apparel,  was  liable  to 
be  levied  and  sold ;  also,  leases  or  terms  for  years,  which  are 
chattels  real;  likewise  growing  grain,  which  went  to  the 
executor  as  personalty;  and  all  such  fixtures  as  might  be 
removed  by  the  tenant,  if  the  tenant  was  the  defendant  in 
execution.  ^ 

§  OSl.  But  such  things  as  belonged  to  the  freehold  and 
descended  to  the  heir,  as  furnaces,  grov.-ing  apple  trees,  and 
other  things  attached  to  the  soil,  or  tenement,  could  not  be 
seized  and  sold  on  execution, ^  Neither  could  judgments, 
accounts,  bonds,  bank  notes,  and  other  choscs  in  action;^  nor 
goods  which  were  mortgaged  or  paAvned  for  debt;^  nor  goods 
distrained,  or  demised  for  years,  or  goods  seized  and  liolden  on 
a  prior  execution  ;S  nor  fixtures  of  a  house  which  was  the  free- 
hold of  the  execution  defendant. ° 

§  0S2.  Property  in  the  hands  of  a  receiver  appointed  by  a 
court  is  not  the  subject  of  execution  levy  or  sale.  It  is  in  the 
custody  of  the  law.  Nor  is  it  subject  to  an  attachment  or 
other  interfering  process.  If  a  party  has  rights  as  against  iu 
application  should  be  made  to  the  court,  which  controls  both 
receiver  and  j^roperty,  for  the  allowance  or  adjustment  of  sucli 
rights.'" 

§  983.  In  the  case  cited  above  from  Iowa,  the  Supremo 
Court  of  that  state.  Cole,  Justice,  say:  "  The  property  levied 
upon  by  the  appellants  was,  at  the  time  of  their  levy,  in  the 
hands  of  a  receiver  appointed  by  the  court.     It  was,  therefore. 

•  3  Tidd's  Prac.  917;  8  Bac.  Abt.  "  Execution,"  G98. 

■2  2  Tidd's  Prac.  917;  Craddock  v.  Pviddlcsbarger,  2  Dana,  200. 

3  2  Tidd's  Prac.  917;  McGee  v.  Cherry,  G  Geo.  5r)0;  Taylor  v.  Gillcan,  23 
Texas,  508;  Rhodes  v.  Megoncgal,  2  Barr,  39;  Ingals  v.  Lord,  1  Cow.  240; 
McCloud  v.  Hubbard,  2  Blackf.  3G1 :  Orsborn  v.  Cloud,  23  Iowa,  104. 

*  3  Tidd's  Frac.  917;  3  Bac.  Abt.  "Execution,"  G89;  Johnson  v.  Crawford, 
C  Blackf.  377. 

'  2  Tidd's  Prac.  917. 

«  3  Bac.  Abt.  "Execution,"  703;  Winn  v.  Ingilby,  5  B.  &  A.  G2o. 

'  Martin  v.  Davis,  21  Iowa,  535;  Drake,  Atlachts.  Sees.  492,  504. 


THE  wiiiT.  323 

in  the  custody  of  the  law  and  not  properly  or  legally  liable  to 
seizure  by  an  oflicer  under  an  execution." 

§  9S4.  In  most  of  the  several  states,  as  a  general  rule,  all 
movables,  including  bank  notes  and  money  not  expressly  ex- 
empt by  statute,  arc  subject  to  levy  and,  except  money,  to  sale 
on  execution.^  Money,  when  levied,  is  applied  on  the  writ  by 
the  officer. 

§  985.  In  some  states  choscs  in  action  and  debts  due  to  the 
defendant, 2  shares  of  stocks  in  joint  stock  companies  and  in 
corporation,  3  maybe  levied  and  sold,  as  also  the  mortgagee's 
right  to  personal  property  mortgaged  to  liim,  after  forfeiture 
by  non-pa^^ment  when  due;'*  but  not  the  interest  of  the  mort- 
gagor after  snch  forfeiture.  ^  But  if  the  interest  be  for  a  fixed 
time,  then  it  is  liable  to  levy  and  sale.^  Also  growing  grain 
and  other  crops  of  annual  jDlanting  can  be  levied  and  sold  as 
at  common  law  in  some  of  the  states,  it  is  said,  and  the  officer 
and  others  entering  to  leyj,  sell,  or  buy,  will  not  be  tres- 
passers.''' But  whether  the  term  "  annual  productions,"  nsed 
])y  jurists  when  treating  of  this  principle,  extends  legitimately 
to  such  crops  as  grow  in  the  ground,  is  by  no  means  clear  to 

'  Handy  r.  Dobbins,  12  Jolms.  230;  Homes  v.  Duncastor,  12  Johns.  395. 

-  Collier  v.  Stanbrough,  G  How.  14. 

"  Stamford  Bank  v.  Ferris,  17  Conn.  2od. 

*  Ferguson  v.  Lee,  9  Wend.  258. 

'  Lamb  v.  Johnson,  10  Cush.  (Mass.)  12G.  (Unless  lie  have  an  interest  for 
.1  fixed  time  such  interest  may  be  levied  and  sold.  See  Rindskoff  r. 
Lyman,  IG  Iowa,  2G0.)  Marsh  v.  Lawrence,  4  Cow.  407 ;  Otis  ».  Wood, ;-! 
Wend.  500;  Campbell  v.  Leonard,  11  Iowa,  480. 

^  Hull  V.  Carnly,  1  Kern,  501;  IMattison  v.  Baucus,  1  Comst.  295;  Rind- 
skofF«.  Lyman,  IG  Iowa,  2G0,  2G9,  270.  In  this  case,  Dillon,  Justice,  said  : 
"The  cifect  of  such  a  sale  is  the  same  as  if  made  by  the  mortgagor  in  the 
ordinary  way.  It  does  not  defeat  the  mortgage,  or  destroj^,  or  in  an}- 
manner  impair  the  legal  rights  of  the  mortgagee.  It  gives  the  purchaser 
tiie  right  to  take  possession  of  and  use  the  property  luitil  the  day  of  pay- 
mcnt,  or  until  the  stipulated  time  expires;  and  it  gives  such  purchaser 
the  further  right,  by  transferring  to  him  the  equity  of  redemption,  to  pay 
olV  the  mortgage  debt,  thereby  extinguishing  the  lien  of  the  mortgage, 
ivnd  thus  makijig  his  title  absolute." 

■I  Wiiipple  V.  Foote,  2  Johns.  418;  Ilartwcll  v.  Bissell,  17  Johns.  128; 
Pennablow  r.  Dwight,  7  IMass.  ;14;  McKinncy  ■».  Lamplcj',  "I  Ala.  52G; 
rurham  v.  Thompson,  2  J.  J.  Marsh.  150;  Fierce  v.  Roche,  40  111.  292. 


324  .JUDICIAJ.   AST)   EXECL-nOX    SALES. 

our  mind,  for  thcj  cannot  bo  gathered  without  digging  up  and 
disturbing  the  land,  which,  to  our  mind,  cannot  be  legally  done 
in  virtue  of  any  sale  of  a  mere  personalty.  In  othei-s  of  the 
states,  crops  may  only  be  levied  and  sold,  when  standing  on 
the  ground,  after  they  have  ripened  or  matured.^ 

§  9S6.  In  Craddoch  v.  J2lddlesharger,-  the  Supreme  Court 
of  Kentucky,  Chief  Justice  Eobkrtson,  hold  the  following 
language  on  this  subject:  "Although  such  annual  produc- 
tions, or  fruits,  of  the  earth  as  clover,  timothy,  spontaneous 
grasses,  apples,  pears,  peaches,  cherries,  etc.,  are  considered  as 
incidents  to  the  land  in  which  they  are  nourished,  and  are, 
therefore,  not  personal;  nevertheless,  everything  produced 
from  the  earth  by  annual  planting,  cultivation,  and  labor,  and 
which  is,  therefore,  denominated  for  the  sake  of  contradistinc- 
tion,  fructus  industrice,  is  deemed  personal,  a.nd  may  be  sold." 
And  the  purchaser,  by  the  same  authority,  has  right  of  ingress 
and  egress  to  cultivate,  preserve,  and  remove  the  same,  but 
acquires  no  interest  in  the  land  itself  than  such  as  is  for  the 
time  being  necessarily  incident  to  his  right  to  such  growing 
fructus. 

§  9S7.  Tlie  interest  of  one  of  several  tenants  in  common  in 
personal  property  may  be  levied  and  sold  on  execution  for  the 
debt  of  such  one.  The  officer  in  levying  takes  possession  of 
the  whole  and  delivers  the  wdiole  to  the  purchaser,^  for  each 
one  of  such  common  owners  may  take  possession  of  the  whole, 
as  their  interests  cannot  be  separated;  and  so  may  the  officer, 
who  represents,  in  that  respect,  the  execution  debtor.  The 
interest  of  the  debtor,  however,  alone  passes  to  the  purchaser, 
and  not  the  whole  interest  in  the  entire  property.'^  The  execu- 
tion purchaser  holds  the  other  interests  for  his  co-owners.  If 
after  levy  of  such  common  interest,  and  before  sale,  the  execu- 
tion debtor  buy  one  or  more  of  the  other  interests  in  the  prop- 

'  Shannon  «.  Jones,  13  Irod,  206. 

^  2  Dana,  (Ky.)  200;  Parliam  v.  Tliompson,  3  J.  J.  IMarsli.  15&. 

3  Birdscye  v.  Kay,  4  Hill,  158;  Ilaydcn  v.  Binncy,  7  Gray,  (Mass.)  416; 
Neaiy  v.  Caliill,  20  111.  214;  While  x.  Jones,  33  111.  159;  James  «.  Stratton, 
33  111.  202. 

'  Neary  v.  Cahill,  20  111.  r>9. 


THE  -WRIT.  ,325 

ertj,  t]ie  officer,  witliout  furtlicr  notice,  may  sell  tlic  entire 
interest  of  the  debtor,  including  the  rights  so  acqnired  hy  his 
purchase. 

§  OSS.  In  Xew  York,  the  sheriff  may  levy  and  sell  the 
interest  of  one  partner  in  goods  of  a  co-partnership,  upon  a 
judgment  and  execution  against  one  only  of  the  firm,  recov- 
ered against  Iiim  for  his  own  individual  debt.  And  if  an 
attachment  of  the  firm  goods  of  a  co-partucrsliip  be  made  as 
against  non-residents,  and  afterwards  be  vacated  as  to  one  or 
more  of  tlie  partners  who  are  residents,  such  attachment  is 
not  in  itself  an  appropriation  of  all  the  goods  so  originally 
attached  to  the  payment  of  the  attachment  debt.  Under  exe- 
cution emanating  from  such  proceedings  the  officer  can  sell  the 
interest  only  of  the  non-i-esident  partners  as  to  whom  the  writ 
of  attachment  and  levy  M'cre  kept  alive. ^ 

§  9S9.  A  merely  equitable  interest  in  personal  property, 
miaxjeompanied  M'itli  jjossession,  cannot  be  levied  and  sold  at 
common  law;  and  such,  too,  is  the  rule  in  Missouri. ^  It  can 
neither  be  handled  nor  seen,  and  is  incapable  of  delivery.  If 
subject  to  sale  it  is  only  so  b}'  statute.  But  before  forfeiture, 
the  interest  of  a  mortgagor  in  mortgaged  personal  property 
may  be  levied  and  sold  if  he  still  retains  possession  of  the 
propert3\  The  purchaser  takes  subject  to,  and  may  redeem 
the  mortgage.^ 

§  990.  In  levjang  and  selling  sliares  of  stock,  where  liable 
by  statute,  it  is  the  shares,  or  interests,  and  not  the  certificates, 
that  are  acted  on  and  sold,  and  a  description  by  the  numbers 
of  the  several  shares,  and  by  the  owner's  name,  is  sufficient.* 

§  991.  Manuscripts  secured  by  copyright,  or  which  are  the 
subjects  of  copyright,  are  liable  to  levy  and  sale  on  execution 
against  the  owner.''    But  the  officer  levying  can  neither  legally 

'  Berry  v.  Kelly,  4  Rob  (N.  Y.)  106. 

"  Ycldeil  V.  Stemmons,  15  Mo.  443;  Sexton  v.  Monky,  IG  ^lo.  1.5G;  Boycc 
V.  Smith,  16  Mo.  317. 

3  Cotton  V.  IMarsh,  3  Wis.  221 ;  Mcrritt  v.  Niles,  25  111.  282;  Selirader  v. 
Woinn,  21  Ina.238. 

*  Stamford  Bank  v.  Ferris,  17  Conn.  259. 

*  Banker  v.  Caldwell,  3  Minn.  89. 


326  ,;iIDICL\L   AND   EXECUTION    SALES. 

use  them,  nor  make,  sell,  or  publish  copies  of  tliem.     If  lie 
does  either,  he  is  liable  to  an  action  for  so  doini^.^ 

§  91>2.  In  Iowa  it  is  held  that  the  right  of  redemption  in 
land  from  a  trust  deed  is  the  subject  of  judgment  lien,  and 
that  after  sale  by  the  trustee,  the  surplus  fund,  if  any,  repre- 
sents the  subject  of  the  judgment  lien,  and  tluit  the  lien  of 
the  judgment  is  subrogated  to  this  surplus  fund,  and  may 
be  enforced  in  equity  against  the  same  in  the  hands  of  such 
trustee;  or  may  be  levied  and  seized  on  execution,  and  process 
of  fj-arnishee.-  But  a  judgment  is  not  liable,  in  Iowa,  to  exe- 
cution levy  and  sale.^ 

§  993.  Iron  safes  and  planing-mills,  when  not  attached  to 
the  realty  in  such  manner  "  as  to  indicate  that  it  is  designed 
to  be  permanent,"  are  regarded  as  personal  property  subject  to 
execution;*  and  though  owned  and  used  by  a  railroad  com- 
pany, have  been  holden  not  to  be  exempt  from  execution  as 
property  appurtenant  to  the  franchise,  or  as  connected  with 
the  freehold;  so,  likewise,  fuel,  oiiice  furniture,  stationery, 
material  for  lights,  and  other  detached  property  of  tlie  coi-po- 
rate  company,  are  regarded  in  Illinois  as  subject  to  execution 
in  proceedings  against  the  company.  ^ 

§  99-1.  Under  the  statute  of  Kentucky  subjecting  lands  to 
execution  sale  it  is  holden  in  that  state  that  only  such  lands 
are  so  liable  to  be  sold  as  the  debtor  himself  might  dispose  of 
by  sale  and  conveyance.  That  the  language  of  the  statute 
beino-  "  of  the  lands,  tenements  and  hereditaments  in  posses- 
sion,  reversion,  or  remainder,"  the  debt  should  be  levied,  and 
th!it  the  deed  should  "be  effectual  for  passing  to  the  purchaser 
all  the  estate  and  interest  which  the  debtor  had  and  might 
lawfully  part  Avith  in  the  lands,"  and  as,  by  the  then  existing 
laws  of  Kentucky,  lands  adversely  holden  could  not  be  sold  or 
conveyed  by  the  owner  whilst  thus  out  of  possession,  so  the 

»  Banker  v.  Caldwell,  3  Minn.  94. 
»  Cook  V.  Dillon,  9  Iowa,  407,  413. 

2  Orsborn  v.  Cloud,  23  Iowa,  104.    It  can  only  be  reached  by  garnishee 
against  the  judgment  debtor. 
"  ♦  Titus  V.  Mabec,  25  111.  257,  2G0. 
5  Ilunt  V.  Bullock,  23  III.  320;  Palmer  v.  Forbs,  23  III.  302. 


TUE    -WEIT. 


327 


power  to  sell  on  execution  was  limited  to  such  lands  as  tlic 
debtor  liimself  might  voluntarily  sell  and  convey,  and  that 
lands  adversely'  holden  against  a  defendant  in  execution  could 
not  during  such  adverse  possession  be  subjected  to  execution 
sale.  1 

§  095.  It  is  moreover  held,  in  the  same  case,  in  Kentucky, 
that  a  subsequent  act  of  assembly,  enlarging  the  powers  of 
owners  to  make  sales  of  lands  so  as  to  cover  lands  holden 
adversel}',  did  not  authorize  their  sale  under  execution  whilst 
such  adverse  possession  continued;  that  while  thus  adversely 
occupied,  the  lands  did  not  come  within  the  description  given 
in  the  statute  of  those  which  were  to  bo  subject  to  execution 
sale;  that  though  the  debtor  might  now  sell  and  i:)ixsQ  the  title 
thereto,  yet  they  were  not  his  "  in  possession,  reversion  or 
remainder,"  and  therefore  not  liable  under  the  act  subjecting 
lands  to  execution  and  sale  for  debt.^ 

§  90G.  Kor  can  the  officer  legally  sell  the  lands  of  an 
execution  defendant  for  his  fees  only,  after  the  judgment  as 
to  principal  is  satisfied.  lie  must  look  to  the  plaintiff  for  his 
costs.  3 

"  ]\rcConnell  v.  Brown,  5  Mon.  481 ;  Griffilh  v.  Huston,  7  J.J.  Marsh.  388; 
M3-ors  V.  SamlcTS,  7  Dana,  510. 

=  ]McConncll  v.  Brown,  5  Mon.  482. 
*  Jackson  v.  Anderson,  4  Wcud.  474. 


CHAPTEK    XXII. 

THE  LEVY. 

I.  When  to  be  Made. 

II.  How  TO  BE  Made. 

III.  Its  Effect. 

IV.  When  Void,  or  DrscriARCED. 
V.  When  it  will  be  Set  Aside. 

VI.    Constructive  Levy. 

I.     When  to  be  Made. 

§  997.  Unless  made  at  a  time  proliibited  Ly  law,  a  Icvywill 
doubtless  be  valid  at  any  time  witliiu  the  life  of  tlie  execution. 

§  998.  Tliougli  ordinarily  it  should  be  made,  when  prac- 
ticable, M'ithin  reasonable  hours  and  not  at  dead  of  night,  to 
the  annoyance  of  the  debtor,  yet  there  are  emergencies  which 
justify  the  making  of  it  whenever  practicable. ^  But  it  must 
be  made  during  the  lifetime  of  defendant^  and  of  the  Avrit.^ 

§  999.  Tieturnable  to  next  term  means  the  first  day  of  such 
term.  A  levy  made  after  the  judicial  end  of  that  day,  and 
sale  thereon,  are  un"\varran table  as  on  a  levy  made  too  late.^ 

§  1000.  For  such  illegal  levy  and  sale,°  or  even  for  the  levy 
alone,  trespass  lies  against  the  officer. "^ 

§  1001.  If  sale  be  made,  however,  and  the  proceeds  applied 
to  the  debt,  such  fact  goes  in  evidence  in  diminution  of 
damaires.'' 


'  3  Bac.  ALt.  "Execution,"  734;  Stale  v.  Thackliam,  1  Bay,  358. 
2  Arnold  v.  Fuller,  1  Ohio,  458,  403;  Cartney  v.  KclhI,  5  Ohio,  221. 
-  Dovoe  V.  Elliott,  2  Caine,  243;  Vail  ■?).  Lewis,  4  Johns.  450;  Gaines  v. 
Clark,  1  Bibb,  008. 
*  Prcscott  V.  Wright,  G  Mass.  23. 
»  H)i(l. 
« Ibid. 
'  Ibid. 

(338) 


THE   LEVY. 

II,     How  TO  BE  Made. 


329 


§  1002.  "A  mere  paper  levy"  is  void.i  Tlie  officer  should 
take  actual  possession ;2  but  removal  of  the  goods  is  not 
absolutely  necessary ;3  yet  there  must  be  actual  control  and 
view  of  the  property,  with  power  of  removal.'* 

§  1003.  The  property  may  then  be  placed  in  the  care  of  a 
third  party; 5  but  at  the  risk  of  the  officer. "  Such  control 
must  be  exercised  as  if  done  without  the  writ,  would  amount 
to  trespass.'^ 

'  Caiy  V.  Bright,^ 58  Pcnn.  St.  84.  In  this  case  the  court  say:  "A  mere 
paper  levy  is  no  levy  at  all,  and  a  sale  under  it  is  a  nullity.  =•=  *  *  A 
man  mi,!^lit  have  his  bed  sold  from  under  him  by  that  means  without  his 
knowin.ij;  it."     Duncan's  Appeal,  37  Penn.  St.  500. 

s  Westewelt  v.  Pinckney,  14  Wend.  123;  Levi  v.  Shockley,  29  Geo.  710; 
Banks  v.  Evans,  10  S.  &  M.  35 ;  Brown  v.  Lane,  19  Texas,  203 ;  Leach  v. 
Pine,  41  111.  GO;  Beekmau  v.  Lansing,  3  Wend.  446;  Logsdon  v.  Spivey,  54 
111.  104. 

=  Very  «.  Watkins,  23  How.  4G9,  474;  Bullitt  ?).  Winston,  1  Mumf.  2G9; 
Moss  V.  jMoore,  3  Hill,  (S.  C.)  27G;  Pusrh  v.  Callaway,  10  Ohio,  (N.  S.)  488; 
Logsdon  V.  Spivey,  54  111.  104. 

"Ray  V.  Harcourt,  19  AVcnd.  495;  Haggerty  «.  Wilber,  16  .lohns.  287; 
Van  AVyck  v.  Pine,  2  Hill,  GG6;  Duncan's  Appeal,  37  Penn.  St.  500;  Caw- 
thorn  V.  ]\IcCraw,  9  Ala.  519;  Mintuan  v.  Striker,  1  Edni.  (N.  Y.)  Sel.  Cas. 
356;  Carey  v.  Bright,  58  Penn.  St.  70;  Logsdon  v.  Spivey,  54  111.  104.  In 
Carey  v.  Bright  the  court  hold  the  following  language  as  to  the  levy :  "  In 
this  case  the  question  was  only  whether,  as  to  part  of  the  goods  alleged  to 
have  been  sold,  there  ever  had  been  a  legal  levy.  A  mere  paper  levy  is  no 
levy  at  all,  and  a  sale  under  it  is  a  nullity  as  to  subsequent  execution 
creditors  and  purchasers.  Lowry  v.  Coulter,  9  Barr,  349.  A  man  might 
have  his  bed  sold  from  under  him  by  that  means  without  his  knowing  it. 
There  was  here  a  considerable  amount  of  personal    property  levied  on, 

but  the  sheriff  added  to  the  inventory  '  all  other  personal  property  in, 

about,  and  connected  with  said  colliery,'  and  without  having  ever  gone 

down  into  the  mines  or  seen  the  property,  he  sold  under  that  descri])lion, 

and  left  the  whole  in  the  possession  of  the  defendants  in  the  execution, 

from  whom  the  landlord  afterwards  purchased  it." 
'  Very  v.  Watkins,  23  How.  469,  474;  Bullitt  v.  Winston,  1  ]\Iumf.  2G9. 
6  Logsdon  ».  Spivej',  54  111.  104;  Bullitt  v.  Winston,  1  Mumf.  269;  Clever 

V.  Applegate,  2  South.  (N.  J.)  479;  Moss  v.  Moore,  3  Hill,  (S.  C.)  276;  SmiUi 

c.  Hughes,  24  111.  270. 

'Westewelt  v.  Pincknej^  14  Wend.  123;  Havely  ®.  Lowrj-,  30  111.  44G; 

Davi.lson  V.  Walden,  31  111.  120;  McBurnie  v.  Ovcrstrcet,  8  B.  Mon.  303; 

Carey  v.  Bright,  58  Penn.  St.  70;  Allen  v.  McCalla,  25  Iowa,  464;  Minor  r. 

Herriford,  25  111.  344;  PtOth  v.  Wells,  29  N.  Y.  471;  Duncan's  Appeal,  37 

Penn.  St.  500. 


330  JUDICLVL   AND    EXECUTION    SMA-IS. 

§  100 J:.  A  description  of  the  goods  and  tlie  facts  constitut- 
ino-  tlie  levy  should  be  endorsed  on  the  writ,  under  signature 
of  the  othcer.i  A  reasonable  time  tlierefor,  and  for  removal, 
if  the  goods  which  are  to  be  removed,  is  allowed  by  law.^ 

§  1005.  A  levy  of  goods  within  from  the  ontsioe  of  a  locked 
up  house  is  invalid,  although  one  or  more  articles  fouTid  out- 
side are  actually  seized.  It  is  only  valid  as  to  the  articles 
seized.^ 

§  lOOG.  Though  the  officer  cannot  release  the  levy^  and 
tahe  other  property,  yet  he  may  levy  other  if  the  defendant, 
by  any  means,  prevent  the  sale  of  the  property  ^rst  levied  on.^ 
So,  to  render  an  additional  levy  valid,  it  must  appear  that  the 
iifst  had  become  in  some  manner  unavailable." 

§  1007.  A  levy  and  sale  of  a  certain  nnmber  of  brichs  in  a 
kiln,  will  be  valid  if  they  are  in  the  power  of  the  officer  to 
deliver  the  same;  and  the  buyer  may,  by  direction  of  the 
officer,  open  the  kiln  and  take  them  away;''  but  not  by  select- 
ing the  same;  only  in  the  usual  manner. 

§  lOOS.  If  from  any  circumstau'-e  uctual  possession  cannot 
be  taken,  and  a  levy  on  mere  view  is  relied  on,  then  the  officer 
should  call  indifferent  persons  to  witness  his  open  assertion  of 
the  levy, « 

§  lOOO.  The  writ  first  received  must  be  first  levied.  A 
postponement  of  the  first,  if  by  plaiutifi''s  order,  gives  right 
to  priority  of  levy  to  the  second.^ 

§  10 10.  If  both  are  received  at  once,  then  they  should  be 
levied  together,  and  of  the  proceeds  of  sale  take  share  and 
share  alike  until  either  be  satisfied;  then  the  balance  until 
satisfaction,  goes  to  the  other  writ. ^^^ 

'  Iliifrgerty  v.  Wilbcr,  10  Johns.  287;  Davidson  v.  Wclden,  31  111.  120. 

»  Woods  V.  Van  Arsdale,  8  Kawlc,  401, 

3  Ilaggerty  «.  Wilber,  IG  Johns.  287. 

*  Smith  V.  Hughes,  24  111.  270. 

'  Ibid. 

«  Il)id. 

■<  Hill  V.  Harris,  10  B.  Mon.  120. 

8  Moore  v.  Fitz,  15  Ind.  4?,. 

9  Deposit  Bank  v.  Berry,  2  Bush,  (Ivy.)  23G. 
'"  Campbell  v.  Roger,  1  Cow.  215. 


THE   LEVY.  331 

III.     Its  Ei'TECT. 

§  1011,  A  proper  levy  to  an  amoinit  siifKcient  to  satisfy 
the  writ  satisfies  the  judgment  sub  modo^  Unlike  a  levy  on 
the  realty,  it  vests  in  the  ofiicer  levying  a  special  property  in 
the  thing  taken. 

§  1012.  But  if  withont  fanlt  of  the  officer  or  plaintiff  the 
Ic^y  becomes  unavailing,  then  it  is  not  a  satisfaction  of  the 
judgment.- 

§  1013.  The  levy  of  personalty  vests  a  special  property  in 
the  officer '"^  which  will  ho  respected  and  maintained  even  in 
dift'erent  jurisdiction,  as  against  the  execution  debtor,  or  a 
wrong-doer.'^ 

§  1014.  In  such  case,  the  expenses  of  regaining  the  prop- 
erty will  be  reimbursed  to  the  officer,  with  reasonable  compen- 
sation for  his  services.  5 

lY.       IrYuEN   YoiD,    oil    DlSCHAKGED. 

§  1015.  A  levy  made  after  return  day  is  void.^  So  if  made 
after  death  of  the  debtor.''  So,  also,  if  the  property  be  not 
subject  to  the  writ,  as  if  holden  in  valid  trust  for  tlie  payment 
of  other  debts  of  the  execution  debtor. ^ 

§  1010.  A  levy  may  be  lost  by  unreasonable  delay  to  sell,*^ 
and  when  so  discharged  by  delay  its  seniority  cannot  be  re- 
instated. ^  " 

^  Ford  e.  Skinner,  4  Oliio,  378 ;  Corning  v.  Hoover,  4  McLenn,  103 ;  Smith 
r.  Iluglios,  24  111.  270;  Trenary  v.  Clicevcr,  48  III.  28;  Cass  v.  Littleton,  3 
()lii(),^22;};  Green  v.  Burke,  23  Wend.  490. 

=  Curtis  V.  Root,  28  111.  3G7,  377;  Smith  v.  Hughes,  24  111.  270;  Green  v. 
Burke,  23  AVend.  490. 

=  McClintock  v.  Graham,  3  IMcCord,  243 :  Rhodes  v.  Woods,  41  Carb.  471 ; 
Williams  v.  Ilerudou,  12  B.  Mon.  484. 

■■  Rhodes  v.  Woods,  41  Barb.  471. 

'  Ibid. 

«  iVIcClure  ».  Sutton,  2  Bailey,  3G1. 

'  Arnold  v.  Fuller,  1  Ham.  (Ohio)  458. 

8  Tliompson  v.  Ford,  7  Ired,  418;  1  Ohio,  4.")8;  Cartuey  ■».  Reed,  5  Ohio, 
221 

*>  Deposit  Bank  v.  Berry,  2  Bush,(Ky.)  G21. 

'0  Weber  v.  Ilcury,  10  Mich.  399,  403. 


332  JUDICIAL   AND   EXECUTION   SAI,ES. 

V.    When  it  will  be  Set  Aside. 

§  1017.  A  levy  can  only  be  removed  by  sale,  or  by  an  order 
of  conrt,  nnless  agreed  to  be  displaced  by  tlic  parties  to  the 
writ.' 

§  lOlS.  It  will  not  be  discharged  b}'  a  release  of  the  prop- 
erty made  through  mistakc- 

§  1019.  It  will  be  set  aside,  if  personal  property  be  levied, 
without  leave  to  the  debtor  to  turn  out  realty,  where  he  has  a 
right  so  to  do.^ 

§  1020.  It  will  also  be  set  aside  if  levied  on  property  which 
is  in  the  hands  of  a  receiver  under  judicial  authority,'^ 

VI.    Constructive  Le'vy. 

§  1021.  AVlicre  a  sheriff  holds  several  executions  in  f;ivor 
of  different  persons,  but  against  the  same  judgment  debtor, 
one  of  which  being  levied,  the  others  come  to  his  hands  after- 
wards between  the  day  of  such  levy  and  the  day  of  sale,  it  is 
not  necessary,  so  far  as  respects  the  property  levied  iipon  by 
the  first  writ,  or  the  surplus  proceeds  of  sale  thereof,  to  make 
a  formal  levy  of  the  subsequent  Mu-it  or  writs.  The  levy  on 
the  first  writ  is  valid  in  law  as  to  all  the  v.-rits  subsequently 
received,  so  as  to  entitle  them,  each  in  their  order,  if  more  than 
one,  to  participate  in  and  receive  the  surplus,  if  any,  of  the 
monies  raised  by  the  sale.^ 

1  Smith  V.  iru.<?hcs,  24  111.  270. 

"■  Wiilkcr  V.  The  Commonwealth,  18  Gatt.  13. 

3  Pitt  V.  McGee,  24  111.  GIO. 

*  Robinson  «.  The  Atlantic  &  Great  Western  R.  R.  Co.  GG  Penn.  St.  IGO. 

5  Slade  V.  Van  Vechten,  11  Paige,  Ch.  21.  In  this  case  Cliancellor  W.\l- 
wouTii  lays  down  the  rule  as  follows:  "  It  is  not  material  whctjier  all  the 
ex^icutions  Avere  levied  or  not,  for  if  the  sheriff  had  levied  one  e.xecntion 
and  other  executions  were  in  his  hands,  or  in  the  hands  of  his  deputies, 
the  levj'  would  be  valid  as  to  all,  so  far  as  to  entitle  tlie  others  to  the  sur- 
plus, if  an}',  raised  at  the  sale  under  the  execution  upon  which  the  levy 
was  made,  and  the  property  advertised  and  sold." 


CIIAPTEE    XXIII. 

THE  SALE. 

I.  By  Whom  to  be  Made. 

II.  How  TO  15E  jMade. 

III,  Its  Effect:  What  Passes  by  it. 

IV.  Void,  and  Voidable  Sales. 
V.  Who  may  kot  Buy. 

VI.    Wiiex  the  Officer  biay  Re-sell. 

I,     By  AViioM  TO  EE  ]\Iaue. 

§  1022.  The  execution,  tlionpjli  a  judicial  writ,  commands 
the  performance  of  a  ministerial,  and  not  a  judicial  act.^  All 
such  writs,  when  directed  to  the  sheriff  generally,  by  his  stylo 
of  office,  may  be  executed  as  well  by  any  one  of  his  legally 
constituted  general  deputies  as  by  the  high  sheriff  himself. ^ 

§  1023.  The  rule  in  this  respect  is  believed  to  be  the  same, 
Avhether  the  levy  and  sale  is  of  real  or  of  persoiial  property. 
Therefore  the  reader  is  referred  for  a  fuller  discussion  of  the 
subject,  to  Chapters  XVI  and  XVII  of  this  work. 

§  1024,  But  we  may  add  here,  that  neither  the  principal 
officer,  nor  liis  deputy,  can  execute  the  writ,  or  sell,  when  it 
is  in  favor  of  the  officer  as  execution  plaintiff,  or  when  such 
officer  lias  purchased,  or  otherwise  become  interested  in  the 
proceeds  thereoff,  except  for  his  fees.^  Neither  can  the  deputy, 
when  in  his  favor  or  interest.  In  such  cases  the  coroner  must 
act.  4 

§  1025.  If  the  writ  is  not  otherwise  satisfied,  and  property 
subject  thereto  be  found  and  levied,  then  a  sale  becomes  an 

"  Bac.  Abt.  8,  G89,  GOO,  691 ;  Wroe  v.  Harris,  3  Wash.  (Va.)  R.  120,  129. 

'  Wroc  V.  Harris,  2  Wash.  (Va.)  120,  129,  130 ;  Tillotsoii  v.  Chcctliam,  2 
Johns.  G3;  8  Bac.  Abt.  675,  G7G. 

»  Chambers  v.  Thomas,  3  A.  K.  Marshall,  536,  537 ;  Riuer  v.  Staccy,  8 
Humph.  288,  407;  May  v.  Walters,  3  McCord,  470. 

'  iSingletary  v.  Carter,  1  Bailey,  407;  Chambers  v.  Thomas,  1  Litt.  268; 
ami  Chambers  v.  Thomas,  3  A.  K.  ^Marsh.  536. 

(333) 


33-i  JUDICIAL   A2CD   EXECUTION    SALES. 

act  necessarily  itivolvecl  in  the  execution  of  tlie  Avrit;  and  it 
follows  that  whoever  may  execute  the  writ  may  sell.  Therefore 
the  principal  sheriff,  or  any  one  of  his  legally  constituted  general 
deputies,  may  in  ordinary  cases  sell.^ 

§  102G.  But  whether  the  sale  be  made  by  the  one  or  the 
other  of  them,  a  crier,  or  auctioneer  may  be  employed  to  conduct 
the  sale,  provided  his  acts  be  done  in  the  presence  and  under 
the  direction  of  the  ofhcer.^ 

§  1027.  If,  however,  the  writ  be  especially  directed  to  the 
principal,  or  high  sheriff  himself,  by  his  personal  name,  as  well 
as  style  of  office,  then  he  only,  and  no  one  else,  can  execute  it.^ 

§  102S.  In  Chamhers  v.  Thomas^^  the  Supreme  Court  of 
Kentucky  say  in  reference  to  this  subject:  "The  principal 
eheriff  is  never  allowed  to  execute  his  own  process;  and  so 
careful  is  the  law  in  guarding  the  interest  of  the  defendant  in 
such  cases  that  not  even  the  deputy  is  permitted  to  execute  the 
process;  but  it  must  go  to  the  coroner,  an  officer  not  supposed 
to  be  under  the  influence  of  the  sheriff."  The  identical  point 
was  previously  adjudicated  between  the  same  parties  and 
decided  the  same  way  in  3  A.  K.  Marshall,  by  the  Supreme 
Court  of  Kentucky.  5 

§  1020.  An  execution  in  the  hands  of  an  officer  when  he 
goes  out  of  office,  which  is  j^artly  executed  b}^  him,  may  be 
completely  executed  afterwards.  lie  continues  sheriff  for  that 
purpose,  and  may  carry  out  the  work  by  him  begun,  by  himself 
or  by  his  deputy,  as  if  he  were  still  in  office. ° 

§  1030.  In  the  case  cited  from  3  Cowen,  the  court,  Savage, 
Justice,  lay  down  the  rule  in  these  words:  "lie  is  in  office 
quoad  Jioc,  and  the  acts  of  a  deputy,  in  relation  to  such  an 
execution  are  the  acts  of  the  sheriff  himself."^  Such,  too,  is 
the  doctrine  even  on  a  ca.  sa.  where  the  defendant  is  liolden  in 

'  8  Bac.  Abt.  GT5,  •'  Underslicriff,"  ib.  G7G. 

*  See  Ante,  Ch.  xvii. 

=  8  Bac.  Abt.  "UndersbenfT,"  GTG;  Wroc  r.  Harris,  2  Wash.  (Va.)  12C, 
129,  130. 

*  1  Litt.  2G8. 

^  Chambers  v.  Tliomas,  3  A.  K.  Marsh.  537. 

*  Jackson  v.  Collins,  3  Cow.  89. 
'  Jackson  v.  Collins,  3  Cow.  95. 


TllK   SALK.  660 


cnstody  by  tlic  old  slicrifF,     He  may  retain  the  custody  of  the 
defendant  and  comijlctc  the  ^vork  of  executing  the  writ.^ 

11.     IIoAv  TO  v.K  Made. 

§  1031.  The  sale  must  he  made  at  the  time  and  place 
appointed  by  the  notice  given  thereof,  unless  it  be  adjourned; 
and  if  made  before  the  hour  appointed  it  will  be  void  in  case 
the  ])ropcrty  goes  for  less  than  its  full  value. - 

§  1032.  The  sale  is  to  be  made  during  the  business  hours 
of  the  day.  An  execution  sale,  made  out  of  business  hours, 
as  for  instance,  after  sun-set,  is  void,  and  the  olhcer,  by  so 
making  it,  becomes  a  trespasser. ^  If  made  before  the  day 
appointed,  it  is,  in  Illinois,  held  to  be  void.'' 

§  1033.  In  selling  personal  property,  the  property  to  be  sold 
must  be  present,  so  that  it  may  be  seen,  handled  and  estimated, 
and  ready  for  delivery.  ^ 

§  1034.  In  the  case  of  Ilcrod  v.  Bartley^^  Chief  Justice 
Treat,  of  the  Illinois  Supreme  Court,  lays  down  the  law  of  this 
subject  in  the  following  terms:  "In  the  sale  of  personal  prop- 
erty on  execution,  the  property  itself  must  be  present.  "Bid- 
ders should  have  an  opportunity  of  inspecting  the  goods  and 
forming  an  estimate  of  their  value.  This  is  the  only  way  to 
secure  fairness  and  competition  at  public  sales.  It  is  necessary 
to  protect  the  rights  of  both  debtor  and  creditor.  It  should 
also  be  in  the  power  of  the  officer  to  deliver  the  property  forth- 
with to  the  purchaser." 

§  1035.  If  a  sale  be  made  of  personal  property  which  is 
not  present  and  capable  of  being  inspected  by  the  bidders,  and 
of  being  delivered  by  the  officer  to  the  purchaser,  the  sale, 

'  ITcmstcad  «.  Read,  20  Johns.  G4;  Jackson  r.  Collin-s,  3  Cow.  0."). 

5  Williams  v.  Jones,  1  Busli.  (Ky.)  G21. 

3  Carwick  v.  Myers,  14  Barb.  (N.  Y.)  0. 

<  Kin,!?  t.  Cushman,  41  111.  31. 

«  Ilerod  V.  Barllcy,  15  111.  58;  Sheldon  v.  Sobo,  15  111.  352;  Cresson  v. 
Stout,  17  111.  IIG;  Ainsworth  v.  Greenlee,  3  Murph.  470;  Blanton  v.  ]\Iarrow, 
7  Ired.  47. 

«  Herod  r.  Bartley,  15  111.  59. 


u3G  JUDICIAL   A2^D    EXECUTION   SALES. 

uccording  to  tlic  case  of  Ilerod  v.  Bartley^  will  be  void.  ^  Such, 
too,  it  is  believed,  is  tlie  weiglit  of  authority. 

§  103G.  The  sale  must  be  at  public  auction,  to  the  highest 
bidder,  for  the  best  price  the  property  will  briiig,^  and  must 
be  for  money;  cash  in  hand.^  The  officer  may  receive  only 
gold  and  silver  legal  coin,  or  whatever  else  is  by  law  a  legal 
tender.-^  The  rule  in  this  respect  is  the  same  as  on  sales  of  real 
estate  on  execution.  ^ 

§1037.  "As  a  matter  of  discretion,"*'  the  officer  may 
adjourn  the  sale  to  a  different  day,  or  place,  or  both;  and  if 
there  be  no  fraud  in  it  or  abuse  of  discretion,  the  sale  will  be 
valid  in  that  respect.'^ 

§  1038.  Nor  will  a  postponement  by  the  plaintiff's  order 
destroy  his  priority  in  favor  of  subsequent  writs,  if  done  in 
good  faith  and  from  fair  motives,  and  to  a  day  not  beyond  the 
return  day  of  writ.s  But  otherwise,  if  to  a  day  subsequent  to 
the  return  day,  it  is  said.^ 

§  1039.  A  sale  on  execution  has  been  holden  valid  as 
between  the  debtor,  creditor,  and  officer  when  made  without 
notice,  being  so  made  by  consent  of  parties.  ^^^ 

§  1010,  J3ut  the  mere  silence  of  the  debtor,  in  standing  by 
and  seeing  his  property  illegally  sold  on  execution  will  not 
render  such  sale  valid,  and  will  not  estop  such  debtor  from 
testing  the  validity  thereof. ^^ 

'  Ilerod  T.  Bartlcy,  15  111.  58. 

■  1  Bouvier,  581;  Swoitzcll  v.  Martin,  IG  Iowa,  519,527. 

'  Noiz.  Max.  Cli.  42;  Griffin  v.  Thompson,  2  How.  244;  Saur  v.  Stcin- 
baucr,  14  Wis.  70 ;  IMumford  v.  Armstrong,  4  Cow.  553 ;  Swopc  v.  Anderson, 
5  lud  213;  Mitchell  v.  Ilackctt,  14  Cal.  G61;  Bigley  v.  Risher,  03  Pcnu.  St 
152;  Hilliard,  Sales,  1230. 

*  Griffin  v.  Thompson.  2  How.  244. 

'  See  Ante,  Ch.  xati.  No.  2. 

«  Tinkiiam  v.  Purdy,  5  Johns.  345 ;  Kussell  v.  Richards,  11  Maine  371. 

'  Tinliiiam  v.  Purdy,  5  Johns.  345;  Russell  v.  Richards,  11  3Iaine  371; 
Swortzell  v.  3Iartin,  10  Iowa,  519;  Phelps  v.  Conovcr,  25  111.  309;  Payne  v. 
Bellinghiim,  10  Iowa,  300. 

8  Lautz  V.  Worthington,  4  Barr.  153. 

'  Lautz  «.  "Wortliingtou,  4  Barr.  153. 

">  Burroughs  v.  AVright,  19  Vt.  510. 

"  Humphrey  v.  Browne,  19  La.  Ann.  158. 


THE   SxVLK.  Ou( 

§  1041.  The  officer,  in  selling,  is  to  exercise  sncli  wholesome 
discretion  in  regard  to  the  manner  of  selling,  as  a  prudent 
person  ordinarily  would  in  reference  to  his  own  affiiirs  under 
like  circumstances,  with  a  view  to  obtaining  the  best  possible 
price  for  the  property  at  a  fair  and  honest  sale.  He  should, 
therefore,  in  selling  various  articles  of  property,  sell  them 
separately,  if  intended  for  separate  use,  and  not  en  masse, 
unless  some  of  them  be  more  suited  to  go  together,  i  In  the 
latter  cases,  such  articles  should  be  sold  together,  if  thereby  it 
is  inferable  that  they  would  bring  the  better  price,  or  be  more 
generally  acceptable  to  bidders.  By  separation,  some  articles 
intended  to  go  together,  would  be  measurably  destroyed  in 
value,  whilst,  on  the  other  hand,  the  uniting  others  together 
would  tend  to  force  bidders  to  either  forego  the  purchase  of 
those  desired  or  else  buy  such  as  they  may  not  want. 

§  1042.  One  buying  at  execution  sale,  under  his  own  execu- 
tion, will  not  ordinarily  be  compelled  to  pay  over  the  money 
to  the  officer,  further  than  the  costs  of  others  than  himself; 
but  may  receipt  the  wi'it,  if  there  be  no  other  writ  in  the 
officer's  hands  claiming  priority  or  contribution.  ''Itw^ould 
be  unreasonable  and  injurious  to  debtors  as  well  as  creditors, 
to  insist  that  the  creditor  in  the  execution,  should  advance 
money  on  his  bid,  when  the  sole  object  of  the  sale  is  to  put 
money  in  his  pocket  by  paying  a  debt  due  to  him."^ 

§  1043.  But  if  there  be  a  dispute  about  the  application  or 
distribution  of  the  money,  in  case  of  more  than  one  wa-it,  then 
the  officer  may  refuse  to  deliver  the  property  to  the  plaintiff 
without  payment,  or  may  sell  again.  ^  The  better  course,  how- 
ever, would  be  to  report  the  proceedings  to  the  court,  as  we 
conceive,  and  have  the  priority  settled. 

§  1044.  In  cases  of  execution  sales  made  where  there  is  a 
valuation  law,  the  same  principal  prevails  in  sales  of  personal, 
as  of  real  property.*  That  is,  if  the  liability  occurred  within 
the  same  jurisdiction  wherein  the  sale  is  being  made,  then  the 

'  Bac.  Abt.  Vol.  3,  704;  Crcssou  v.  Stout.  17  Johns.  IIG. 

-  Nichols  v.  Kctchum,  19  Johns.  92;  Eussell  v.  Gibbs,  5  Cow.  390. 

3  Russell  1).  Gibbs,  5  Cow.  390;  Swortzcll  v.  Martin,  IG  Iowa,  519,  526,  527. 

«  See  Ante  Ch.  xrir.,  No.  G. 

9.9 


338  JUDICIAL    AND   EXECUTION   SAJ.ES. 

sale  must  be  in  conformity  to  tlie  law,  as  it  was  when  the  lia- 
bility occnrred,  provided  the  proper  data  to  enable  the  officer 
to  conform,  in  that  respect,  appears  from  the  process. ^  If, 
however,  the  contract  originate  in  one  jurisdiction  and  the 
enforcement  of  it  is  in  another,  then  the  law  of  the  state  where 
and  when  it  is  being  enforced  is  to  govern  the  mode  of  sale." 

§  1045.  So,  in  like  manner,  if  it  do  not  appear  where  the 
liability  occurred,  then  the  enforcement  is  to  be  in  accordance 
with  the  law  as  it  exists  at  the  place  of  sale  at  the  time  of 
rendition  of  the  judgment. 

§  104G.  Such  are  the  general  j)rinciples,  as  applicable  to 
execution  sales,  of  both  personal  and  real  property.  But  the 
result  of  a  departure  therefrom  is  not  necessarily,  in  all  cases, 
and  in  all  the  states,  the  same  in  one  case  as  in  the  other. 

§  1047.  In  Rosier  v.  Hale,^  the  Supreme  Court  of  Iowa, 
TjOwe.  Justice,  held :  "  The  doctrine  laid  down  is,  that  the  law  in 
force  when  the  contract  is  made  is  necessarily  referred  to  and 
forms  a  part  of  the  contract,  and  fixes  the  rights  and  obliga- 
tions growing  out  of  it,  and  that  any  substantial  change  in 
the  law  of  the  remedy  which  shall  lessen  its  efficiency  or  bur- 
den it  with  new  conditions  and  restrictions,  comes  within  the 
constitutional  prohibition. 

III.     Its  Effect:   Wuat  Passes  t.y  it. 

§  1048.  The  effect  of  an  execution  sale,  realizing  the  amount 
of  the  execution,  is  a  satisfaction  of  the  judgment.  Thereby  it 
"  ceases  to  exist."  It  loses  its  vitality.  It  can  only  be  restored 
or  revived  by  an  order  of  court  vacating  satisfaction.     The 

'  Brouson  r.  Kinzic,  1  How.  311;  McCracken  «.  Ilayward,  2  How.  608; 
Gantley's  Lessee  v.  Ewin<?,  3  How.  707;  Blair  v.  "Williams,  4  Litt._34;  Lap- 
sley  V.  Brashcars,  4  Litt.  47;  Pool  v.  Young,  7  B.  Mou.  587;  McKiuney  v. 
Carroll,  5  Men.  98;  Grayson  v.  Silly,7  Mon.  6;  Smith  v.  Morse,  2  Cal.  524; 
Hunt  V.  Gregg,  8  Blackf.  105 ;  Coriel  v.  Ham,  4  G.  Greene,  455 ;  Burton  v. 
Emerson,  4  G.  Greene,  393 ;  Shaffer  v.  Bolandcr,  4  G.  Greene,  201 ;  Willard 
V.  Lonstrect,  2  Doug.  (Mich.)  172 ;  Quackeubush  v.  Danks,  1  Denio,  128 ; 
Hosier  v.  Hale,  10  Iowa,  475. 

-  Hutchins  v.  Barrett,  19  Ind.  15;  Doe  v.  Collins,  1  Carter  (Ind.)24  ;  Shaf- 
fer ■;;.  Bolandcr,  4  G.  Greene,  201 ;  Stor}^,  Confl.  of  Laws,  Sec.  55G. 

="  10  Iowa,  485. 


THE   SALE.  330 

making  of  tliis  order  requires  a  judicial  power  equal  to  that 
which  originally  entered  the  judgment.  No  less  a  power  can 
impart  new  life  to  it,  when  satisfied  by  the  acts,  valid  for  the 
time  being,  of  an  officer  having  power  so  to  do.^ 

§  1040.  Until  such  satisfaction  be  judicially  vacated,  and 
execution  anew  be  ordered,  no  subsequent  execution  can  legally 
issue  on  the  judgment."  It  is  well  said  that  "an  execution 
executed  is  the  end  of  the  laAV."^ 

§  1050.  Payment  of  the  money  to  the  plaintiff  satisfies  the 
WTit,  by  whomsoever  the  payment  be  made.  The  sheriff  can- 
not, of  his  own  funds,  pay  off  the  creditor  for  the  execution 
in  his  hands,  or  otherwise  satisfy  him,  and  retain  the  writ  and 
its  vitality  to  enforce  the  same  against  the  defendant  as  the 
means  of  indemnifj'ing  himself.  If  he  thus  j)ay  off  the  cred- 
itor, both  VTit  and  judgment  are  thereby  satisfied,  and  are 
functus  officio.^  This,  too,  irrespective  of  the  inability  of  the 
officer  to  execute  a  writ  for  his  own  benefit.  There  remains, 
after  such  payment,  no  vital  writ  to  be  executed  by  any  one. 
The  vital  force  of  both  writ  and  judgment  are,  by  the  very  act 
of  payment,  extinct. 

§  1051.  The  purchaser  has  a  right  to  what  he  gets,  and  to 
nothing  more.  Caveat  emptor  is  the  rule.  lie  takes  only 
the  interest  of  the  defendant.  If  the  defendant  has  no  inter- 
est, then  the  buyer  gets  nothing;  and  he  cannot  avoid  payment 
by  showing  that  the  goods  belonged  to  some  one  else.^  But 
if  an  innocent  purchaser,  he  may  have  redress  in  equity  against 
the  execution  debtor  vi'hose  debt  he  has  paid.^^ 

§  1052.  By  a  sale  of  personal  j^roperty  on  an  execution 
against  one  of  two  common  o'ui.iers,  the  j)urchaser  takes  only 
the  interest  therein  of  the  defendant  in  the  writ.  lie  becomes 
the   tenant   in   common   with   the   other   owner.     This,   too, 


'  Hughes  t\  Strectcr,  'l^  HI.  G47,  G49. 
*  Ibid. 

^  3  Bac.  Abt.  087. 

^  Sherman  ».  Boyce,  15  Johns.  44G ;  Reed  v.  Prnyn,  7  Johns.  426. 
5  Griffith  V.  Fowler,  18  Vt.  390;  Popleston  v.  Skinner,  4  Dev.  &  Batt.  160; 
McGec  «.  Ellis,  4  Litt.  244;  Austin  t\  Tildcn,  14  Vt.  325. 
« IMcGec  1).  Ellis,  4  Litt.  244. 


3J:0  JUDICLVL    AKD   EXECUTION    SALES. 

altliougli  tlie  officer  assumes  to  sell  tlie  whole,  i  Tlicreforc  tlic 
common  owner  whose  rights  are  not  affected  by  the  sale,  can- 
not maintain  an  action  in  reference  to  the  transaction  against 
the  purchaser  or  tlie  officer  who  sells. ^ 

§  1053.  But  if  after  levy  and  before  sale  the  execution 
defendant  buys  the  interest  of  the  other  tenant  in  common  in 
the  property  levied,  then  the  officer,  without  further  levy  or 
notice,  may  sell  the  whole  interest  and  entire  property.  ^ 

§  1054.  If  after  levy  on  lands,  they  be  sowed  in  grain  by 
the  debtor,  before  execution  sale,  and  then  another  execution 
be  levied  on  the  growing  grain,  and  the  same  be  sold  thereon, 
the  latter  writ  will  be  entitled  to  preference  in  the  proceeds 
of  the  grain.'* 

§  1055.  A  distinction  is  taken  between  a  sale  of  the  prop- 
erty itself  and  of  the  mere  interest  of  the  debtor  therein.  In 
the  former  case  the  purchaser  takes  the  property  with  its  legal 
incidents,  whilst  in  the  latter  he  takes  only  the  interest  which 
tlie  debtor,  as  such,  has  and  may  himself  enforce. ^ 

§  105G.  To  a  j)urchaser  of  growing  grain,  at  execution  sale, 
on  execution  against  the  owner,  the  right  to  enter  and  take 
away  the  grain,  or  to  secure,  harvest  and  preserve  it,  passes 
with  the  property  to  tlie  purchaser;  neither  the  purchaser  nor 
officer  will  be  liable  to  an  action  for  acts  necessary  and  proper 
to  be  done  by  them  in  regard  to  it.^  But  in  an  action  there- 
for it  is  not  sufficient  that  they  justify  under  execution  sale; 
but  the  plea  must  show  the  execution  to  have  been  against  the 
owner  of  the  property  levied  and  sold.  A  mere  allegation 
of  purchase  on  execution  sale,  generally,  will  not  amount  to  a 
defense.'' 


'  Poplcston  v.  Skinner,  4  Dcv.  &  Batt.  IGO. 

"^  Fiero  v.  Betts,  2  Barb.  G33 ;   Wilson  v.  Reed,  8  Johns.  175 ;  White  v. 
Osborn,  21  Wend.  75. 
'  Birdseyc  v.  Ray,  4  Hill,  158. 
"  Stambaugh  v.  Yates,  2  Rawlc,  IGl. 
'  True  V.  Congdon,  44  N.  II.  48. 
«  Terrill  v.  Thompson,  3  Bibb,  273. 
'  Ibid. 


THE  SALE.  3-il 

TV.  Void  and  Yoidable  Sales.  • 

§  1057.  Execution  sales  of  personal  property,  as  is  the  case 
in  similar  sales  of  real  property,  made  on  executions  that  are 
satisfied,  or  that  issued  on  satisfied  judgments,  are  universally 
regarded  as  void  when  the  purchaser  buys  or  pays  with  kno\vl- 
cdge  of  such  satisfaction.  ^ 

§  105S.  And  whether  the  purchaser  has  such  knowledge  or 
not,  the  better  authority  is  that  the  sale  being  on  a  power  that 
is  exhausted,  the  sale  is  void.  It  is  no  better  than  a  sale  upon 
a  void  judgment.  It  cannot,  under  the  usual  circumstances, 
be  sustained. 2  But  if  the  execution  debtor,  with  knowledge 
of  such  satisfaction,  silently  stand  by  and  sutler  others  to  pur- 
chase, or  do  acts  calculated  to  mislead  a  buyer  in  making  such 
purchase,  it  is  a  fraud  on  his  part,  and  he  is  estopped  to  deny 
the  validity  of  the  sale.^ 

§  1059.  A  sale  fraudulent  in  itself,  though  made  under  color 
of  execution,  is  of  no  validity,  and,  therefore,  where  the  process 
of  the  court  is  prostituted  to  the  fraudulent  purpose  of  hinder- 
ing and  delaying  other  creditors,  under  semblance  of  a  real  sale. 
the  transaction  will  be  treated  as  fraudulent  and  void.* 

§  1000.  In  Louisiana,  debts  due  to  an  execution  debtor  are 
subject  to  levy  and  sale,  but  are  required  to  be  appraised,  before 
sale,  at  cash  value,  and  to  be  sold  for  not  less  than  two-thirds 
of  such  value.  It  is  holden  in  that  state,  that  a  sale  of  such 
interest,  on  execution,  without  appraisement,  though  in  other 
respects  regular,  is  void.^' 

Y.     Wno  ^L\.Y  NOT  Buy. 
§  lOCl.     Tlie  same  person  may  not  both  buy  and  sell,  by 

1  .Tackson  v.  Anderson,  4  Wond.  474 ;  Nielsou  v.  Nielson,  5  Barb.  565. 

-  Nielson  v.  Neilson,  5  Barb.  5G5 ;  Jackson  v.  Anderson,  4  Wend.  474, 479 ; 
Childs  V.  Bernard's  Ex'rs,  3  Dana,  95,  96;  Monchat  v.  Brown,  3  Rich.  117; 
Lavellc  v.  Rowley,  17  Ind.  36;  State  v.  Salers,  19  Ind.  432;  Sherman  v. 
Boyce,  15  Johns.  443  •  Jackson  v.  Caldwell,  1  Cow.  622 ;  Ilammit  «.  Wymau, 
9  Mass.  138;  Lewis  v.  Palmer,  6  Wend.  368. 

»  Wood  V.  Colvin,  2  Hill,  55G;  Jackson  v.  Caldwell,  1  Cow.  622. 

^  Stephens  v.  Barnett,  7  Dana,  259;  Corlies  v.  Standbridge  5  Rawle,  286; 
Yoder  v.  Standiford,  7  Mon.  485. 

5  Collier  v.  Stanbrough,  6  How.  14. 


6-±'J  JUDICIAL    AND   EXECUTION    SALES. 

mere  force  of.  the  process.  Kor  will  liis  return  thereof  on  tlie 
■writ  show  such  title  in  him  as  will  be  res^arded  even  as  airainst 
a  trespasser.^ 

§  1062,  In  tlie  case  here  cited  from  Yermont,  the  title  to 
certain  cattle  was  involved.  The  sheriif  claimed  to  own  them 
1)V  purchase  at  an  execution  sale  made  bj  himself.  Though 
the  levy  vested  a  special  proj^erty  in  the  sheriff,  yet  the  levy 
had  become  merged  in  the  sale.  So  he  had  no  longer  a  claim 
under  it.  Thus,  the  sole  question,  say  the  court,  was  "  whether 
an  officer  acting  under  legal  process  can  sell  property  to  him- 
self" They  say  that,  "  According  to  all  the  authorities,  such 
an  officer,  in  addition  to  liis  character  as  a  minister  of  the  lavr, 
is  reiirarded  as  a  sort  of  trustee  and  accent  both  of  the  creditor 
and  debtor.  The  two  characters  place  him  on  higher  and  more 
responsible  ground  than  a  mere  private  trustee  or  agent.  And 
if  the  latter  is  not  permitted  to  acquire  a  personal  interest  in 
the  matter  of  his  agency,  much  less  should  such  indulgence  be 
granted  to  the  former."  In  the  same  case  the  court  lay  dovni 
the  rule  that  even  if  the  purchase  be  made  by  consent  of  plain- 
tiff and  defendant  in  the  writ,  that  though  it  might  then,  as 
between  the  officer  himself  and  the  parties,  be  valid,  yet  it 
would  amount  to  no  more  than  a  purchase  from  the  defendant 
himself,  yet  it  would  in  nowise  partake  of  the  sanctity  of  an 
execution  sale. 

§  lOGo.  But  if  the  writ  of  execution  be  directed  to  his  prin- 
cipal, and  the  sale  be  made  by  him,  and  the  deputy  be  the 
execution  creditor,  then  such  deputy,  it  is  believed,  may  right- 
fully purchase  at  the  sale  of  his  principal  if  it  be  fairly  made.- 
And  such,  too,  is  believed  to  be  the  rule,  whether  the  sale  be  of 
])ersonalty  or  of  realty.  It  is  equally  the  interest  of  debtor 
and  creditor  tliat  the  execution  creditor  shall,  in  such  case,  be 
allowed  to  bid.  It  is  very  different  from  a  case  in  which  the 
]jrincipal  sheriff  is  plaintiff  and  his  deputy  sells.  In  this  case 
the  court  say,  in  reference  to  the  act  of  assembly  which  j)ro- 

'  Woodbury  r.  Parker,  19  Vt.  oo:^ ;  sec  also  MiUs  v.  Goodsell,  5  Conn.  475 ; 
Pierce  V.  Benjamin,  14  Pick.  -350 ;  Perkins  v.  Thompson,  3  N.  H.  144 ;  Moor 
land  v.  Kimberlin,  G  B.  Mon.  G08. 

'  Jackson  v.  Collins,  3  Cow.  89. 


</ 


THE  SALK.  343 

liibits  a  sheriff  from  buying  at  execution  sales:  "  It  could  never 
have  been  the  intention  of  the  legislature  to  have  prevented  a 
dej^utj  sheriff,  when  plaintiff  in  an  execution  sale,  from  bid- 
ding, in  order  to  secure  his  money.  The  object  was  to  prevent 
abuse."  1 

§  1005.  In  Massachusetts  it  is  held  that  a  sale  made  under 
an  appraisement  law,  where  a  brother  of  the  execution  creditor 
was  one  of  the  appraisers,  is  illegal,  and  moreover,  that  thereby 
the  officer  selling  becomes  a  trespasser.  ^ 

YI.     WuEX  THE  Officer  may  Ile-sell. 

§  1000.  If  the  terms  of  sale  are  not  promptly  complied 
with  by  the  purchaser  by  payment  of  the  purchase  money, 
the  officer  may  sell  again  without  further  notice,  at  the  same 
time  and  place.  ^  But  not  within  the  time  allowed,  if  any,  by 
terms  of  sale,  for  payment  to  be  made.'* 

S  100 T.  All  such  sales  are  for  cash,  and  ouo-ht  to  be  for 
cash  in  hand;  if  the  purchaser  do  not  comply,  it  is  adjudged 
in  some  cases  that  he  may  be  compelled  to  make  good  the 
deficiency  in  price,  if  any,  on  the  re-salc  of  the  property. ^ 

'  Ibid. 

■^  McCongh  V.  Wellington,  G  Allen  (Mass.)  505. 

3  Illingworth  t.  Miltenberger,  11  Mo.  81;  Winslow  c.  Loring,7  Mass.  392; 
Ilaynes  v.  Breaux,  IG  La.  An.  142;  Saur  «.  Stienbaiier,  14  Wis.  7;  Gaskill 
r.  Morris,  7  Watts  &  Sergt.  o2 ;  Bigley  v.  Risher,  63  Penu.  St.  152. 

*  Conway  v.  Noltec,  11  Mo.  74. 

5  Lamkin  v.  Crawford,  8  Ala.  153 ;  Minter  v.  Dent,  2  Bailey,  291. 


CHAPTEE  XXIY. 

EXECUTION  SALES  OF  CORPORATE  FRANCniSES,  mOPERTY 

AND  STOCKS. 

I.    At  Common  Laav. 
II.    By  Statute. 
III.    Effect  op  Sale. 

I.     At  Common  Laav. 

§  IOCS.  The  Supreme  Court  of  the  United  States,  recog- 
nizing the  rule  that  corj)orate  franeliises,  being  incorporeal 
hereditaments,  cannot,  upon  the  settled  principles  of  the  com- 
mon law,  be  seized  and  sold  on  execution,  declare  that  if  they 
can  be  sold,  in  any  of  the  states,  "  it  must  be  under  statutory 
provision."     Such,  too,  is  the  current  of  authorities. ^ 

§  1069.  Nor  can  the  lands,  easements,  or  works  appurten- 
ant to,  or  essential  to  the  use  and  practical  operation  of  the 
franchise  be  levied  and  sold  on  execution  at  law,  separate  from 
the  franchise,  so  as  to  impair  its  value  or  impede  its  use.- 
Neither  are  the  tolls  or  product  of  the  franchise  subject  to 
such  levy  and  sale,  so  as  to  prevent  the  company  from  demand- 
ii]g  and  receiving  the  same,  or  so  as  to  divest  it  of  its  right  of 
ownershij^  and  possession. ^ 

'  Giio  V.  Tide  AVutcr  Can.il  Co.  24  How.  363;  James  v.  Pontiac  Plank- 
road  Co.  8  Mich.  91;  Coe  v.  Columbus  &  C.  R.  R.  Co.  10  Ohio  St.  372: 
Scymore  «.  Milf.  &  Chil.  Turnpike  Co.  10  Ohio,  47G,  480;  Stewart ».  Jones, 
40  Mo.  140;  Youugman  v.  Elmira  &  W.  R.R.  Co.G5  Peun.  St.  278;  Western 
Pcnn.  R.  R.  Co.  v.  Johnson,  59  Peun.  St.  290;  Atkinson  v.  M.&  C.R.  R.  Co. 
15  Ohio,  21;  Canal  Co.  v.  Bonham,  9  Watts  &  Sergt.  27,  28;  Wood  v.  Turn- 
pike Co.  24  Cal.  474;  Monroe  i;.  Thomas,  5  Cal.  470;  Thomas  B.Armstrong, 
7  Cal.  28G. 

*  Gue  V.  Tide  Water  Canal  Co.  24  How.  257;  Amant  v.  New  Alexandria 
&  Pittslmrg  Turnpike  Co.  13  S.  &  R.  212;  Susquehanna  Canal  Co.  v.  Bon- 
ham, 9  Watts  &  Sergt.  27;  Plymouth  R.  R.  Co.  v.  Caldwell,  39  Penn.  St. 
337;  Coc  v.  Columbus  R.  R.  Co.  10  Ohio  St.  372;  Young  v.  Alexandia  & 
Western  R.  R.  Co.  G5  Penn.  St.  278. 

^  Gue  V.  Tide  Water  Canal  Co.  24  How.  2G3;  Leedon  v.  Plymouth  R.  R. 
Co.  5  W.  &  S.  2G5 ;  Scymore  v.  Milf.  &  Chil.  Turnpike  Co.  10  Ohio,  479.    In 

(344) 


SALES   OF    FK.VJv'CrilSES,    I'KOrERTY    AKD   STOCKS.  3-15 

§  1070,  A  railroad,  if  subject  to  execution  sale  at  all,  can- 
not be  cut  lip  into  parcels  and  sold  at  different  sales,  in  the 
different  conn  ties  in  wliich  it  is  situate;  it  would  defeat  tlie 
2)urposes  of  the  law  in  reference  to  the  road.^     Kor  can  the 

the  case  cited  from  24  IIow.  a.  fieri  facias  issued  to  the  U.  S.  Marshal  for 
the  district  of  Maryland,  who  "seized  and  advertised  for  sale  a  house  and 
lot,  sundry  canal  locks,  a  wharf,  and  sundry  other  lots,"  wliicli  belonged 
to  the  defendant,  the  Tide  Water  Canal  Company,  in  fee.  The  company 
obtained  an  injunction  against  the  sale,  and  the  same  was  made  perpetual 
in  the  Circuit  Court  of  the  United  States  for  said  Maryland  district.  From 
the  decree  perpetuating  the  injunction  the  case  was  appealed  by  Gue  to 
the  United  States  Supreme  Court.  There  the  decree  was  afBrmed.  We 
insert  here  the  following  extract  from  the  opinion  of  the  United  States 
Supreme  Court:  "  Now  it  is  very  clear  that  the  franchise  or  right  to  take 
toll,  on  boats  going  through  the  canal,  would  not  pass  to  the  purchaser 
under  this  execution.  The  franchise,  being  an  incorporeal  hereditament, 
cannot,  upon  the  settled  principles  of  the  common  law,  be  seized  under  a 
fieri  facias.  If  it  can  be  done  in  any  of  the  states,  it  must  be  under  a 
statutory  provision  of  the  state;  and  there  is  no  statute  of  Maryland 
changing  the  common  law  in  this  respect.  Indeed,  the  marshal's  return 
and  the  agreement  of  the  parties  show  it  was  not  seized,  and  consequently, 
if  the  sale  had  taken  place,  the  result  would  have  been  to  destroy  utterly 
the  value  of  the  property  owned  by  the  company,  while  the  creditor  him- 
self Avould,  most  probably,  realize  scarcely  anything  from  the  useless 
canal  locks  and  lots  adjoining  them.  The  record  and  proceedings  before 
us  show  that  there  were  other  creditors  of  the  corporation  to  a  large 
amount,  some  of  whom  loaned  money  to  carry  on  the  enterprise.  And  it 
Avould  be  against  the  principles  of  equity  to  allow  a  single  creditor  to 
destroy  a  fund  to  which  other  creditors  had  a  right  to  look  for  payment, 
and  equally  against  the  principles  of  equity  to  permit  him  to  destroy  tlie 
value  of  the  property  of  the  stockholders  by  dissevering  from  the  fran- 
chise property  wliich  was  essential  to  its  useful  existence.  In  this  vicAv 
of  the  subject,  the  court  do  not  deem  it  proper  to  express  anj^  opinion  as 
to  the  right  of  this  creditor  in  some  other  form  of  judicial  proceeding  to 
compel  the  sale  of  the  whole  property  of  the  corporation,  including  the 
franchise,  for  the  payment  of  his  debt.  *  *  *  *  If  the 
appellant  has  a  right  to  enforce  the  sale  of  the  whole  property,  including 
the  franchise,  his  remedy  is  in  a  court  of  chancery,  where  the  rights  and 
priorities  of  all  the  creditors  may  be  considered  and  protected,  and  tlic 
property  of  the  corporation  disposed  of  to  the  best  advantage  for  the 
benefit  of  all  concerned.  A  court  of  common  law,  from  the  nature  of  its 
jurisdiction  and  modes  of  proceeding,  is  incapable  of  accomplishing  this 
object;  and  the  court  was  right  in  granting  the  injunction,  and- its  decree 
is  therefore  affirmed."  Gue  -y.  Tide  Water  Canal  Co.  24  How.  203,  2G4. 
1  Macon  &  West.  R.  R.  Co.  v.  Parker,  9  Geo.  377 


346  JUDICIAL    AND    EXECUTION    SALI'IS. 

turn-tables  of  tlie  road,  or  freight-cars  found  on  the  road,  or  on 
the  side-tracks  thereof,  be  levied  and.  sold  on  execution  at  law 
ao-ainst  a  railroad  company;  they  are  a  part  of  the  realty,  are 
incident  to  the  franchise,  and  cannot  be  thus  severed  and  sold.^ 
So,  likewise,  stocks  or  shares  in  corporate  companies  may  not, 
except  by  statute,  be  taken  on  execution  and  sold  at  law.-  But 
in  New  Hampshire  it  has  been  holden  that  locomotive  engines, 
passenger-cars  and  freight-cars  of  a  railroad  corporation  are 
liable  to  attachment  and  execution  sale  when  not  in  actual  use."* 

§  1071.  In  Pennsylvania  it  is  held  that  the  right  of  way 
and  road  bed  of  a  raih'oad  corporation,  assessed  to  the  company 
"  as  a  right  of  way  or  passage,  with  such  occupancy  as  is  neces- 
sary to  give  this  right  effect,"  being  a  mere  easement,  is  not 
the  subject  of  execution  sale.  The  court  say:  "This  being 
the  nature  of  the  interest  acquired  by  a  railroad  company  in 
land  appropriated  for  the  use  of  its  railroad,  a  mere  easement 
or  right  of  passage  for  a  public  purpose,  it  is  a  settled  principle 
in  our  law  that  this  interest  is  not  the  subject  of  a  lien  or  sale 
under  execution."  * 

§  1072.  In  California  it  is  held  that  a  sale  of  the  road  of  a 
corporate  company  on  execution  at  law  passes  no  title  to  the 
franchise,  or  to  the  road.  In  Wood  v.  Turnpike  Oo.,^  the  court 
say,  Shafter,  Justice:  "  The  plaintiff"  acquired  nothing  by  the 
purchase  of  the  'road'  to  which  the  action  of  ejectment  has 
any  remedial  relations." 

'  TitAis  1).  Mabee,  25  111.  257;  Scymore  v.  Milf.  &  Cliil.  Turnpike  Co.  10 
Ohio,  47G,  480;  Hunt  v.  Bullock,  23  111.  320;  Palmer  «.  Forbs,  23  111.  302. 
In  Seymorc  «.  The  Milford  and  Chillicothe  Turnpike  Co.  the  Supreme 
Court  of  Ohio  hold  the  following  language:  "There  can  be  no  doubt  that 
tlie  right  of  taking  toll  upon  a  turnpike  road  is  a  franchise,  and  is  not  at 
common  law,  nor  by  our  law  regulating  judgments  and  executions,  the 
proper  subject  upon  which  to  levy  an  execution." 

-  James  v.  Plank-road  Co.  8  Mich.  91 ;  Titcomb  v.  Ins.  Co.  8  Mass.  32G ; 
Taylor  v.  Junkins,  G  Jones'  Law  (N.  C.)  31G. 

»  Boston,  Concord  &  Montreal  R.  R.  Co.  i\  Gilmore,  37  N.  IT.  410. 

*  Western  Penu.  R.  R.  Co.  v.  Johnson,  59  Pcnn.  St.  290,  294;  Armant  c. 
Turnpike  R.  Co.  13  S.  &  R.  210;  Ridge  Turnpike  Co.  v.  Stover,  2  ^y.  &  S. 
r)i8;  Leedom  v.  Plymouth  R.  R.  Co.  5  ib.  2G5;  Susquehanna  Canal  Co.  v. 
Bonham,  9  ib.  27. 

'•  24  Cal.  474,  478. 


SALES   OF   rilANCniSES,    rROl'ERlT   AXC   STOCI^.  3-i7 

II.     ]]y  Statute. 

§  1073.  As  authority  to  make  such  sales  on  executions  at 
law  can  exist  only  by  ex])ress  statute,  it  follows  that  they  can 
only  be  made  in  such  manner  as  the  statute  prescribes.  ^  There 
must  be  a  substaiitial  con:*brmity  to  the  statutory  method  of 
sale,  otherwise  no  r!i;ht  will  pass  by  the  sale.  Where  the  sale 
by  the  statute  should  Jiave  been  to  the  one  who  for  the  shortest 
period  of  user  would  pay  the  debt  and  costs,  and  it  was  juade 
for  an  absolute  term,  for  ])art  only  of  the  debt  and  costs,  the 
sale  was  liolden  to  be  void.^  Nor  will  the  mere  acquiescence 
of  the  stockholders,  or  taking  possession  by  the  purchaser, 
give  validity  to  the  sale.-'' 

§  1074.  In  Davis  v.  Maynard^  it  is  lield  that  such  con- 
formity must  be  shown  by  tlie  purchaser  in  case  of  litigation 
involving  the  validity  of  the  sale;  that  sucli  showing  should 
be  by  the  officer's  return  embodying  the  evidences  of  the 
required  conformity;  and  that,  therefore,  without  a  return  of 
the  officer  the  purchaser  takes  nothing.* 

§  1075.  Selling  on  diiferent  notice  than  that  required  by 
the  statute,  will  (for  instance)  render  the  sale  void.^ 

'  Gue  V.  Tide  "VYatcr  Canal  Co.  24  IIow.  257 ;  James  «.  Plank-road  Co.  8 
3Iicli.  91;  Titcomb  v.  Ins.  Co.  8  Mass.  32G;  Taylor  r.  Jenkins,  G  Jones, 
Law  (N.  C.)  31G;  Scymore  v.  Milf.  &  Chil.  Turnpike  Co.  5  Ohio,  47G;  IIow 
T.  Starkweather,  17  Mass.  240 ;  Davis  'o.  Maynard,  9  Mass.  242 ;  Stanford 
Bank  i\  Ferries,  17  Conn.  2.')9. 

-  James  ij.  Plank-road  Co.  8  Mich.  91 ;  Taylor  v.  Jenkins,  6  Jones'  Law, 
(]Sr.  C.)  316.  There  is  this  distinction  in  that  respect  between  ordinary 
execution  sales  of  personal  property.  There  the  levy  is  accompanied  with 
tangible  possession.  It  vest  a  special  property  in  the  officer,  and  the  title 
])asses  to  the  purchaser,  with  delivery  of  the  property  by  the  officer, 
Avhether  the  sale  be  regular  or  not.  But  in  sales  of  shares  in  an  incor- 
porated compan}',  the  interest  being  intangible  and  incapable  of  deliver}-, 
the  title  must  pass  by  legal  transfer,  else  not  at  all.  Hence  if  the  sale  be 
not  in  accordance  with  tlie  substantial  requirements  of  the  statute  it  will 
be  inoperative  and  will  not  confer  title  on  the  purchaser.  (Titcomb  r. 
Union  Ins.  Co.  8  Mass.  32G;  How  v.  Starkweather,  17  Mass.  240.) 

^  James  v.  Plank-road  Co.  8  Mieh.  91. 

^  9  Mass.  242;  Ilammilt  r.  Wyman,  9  Mass.  138;  IIow  t-.  Starkweather, 
17  Mass.  240. 

•  How  V.  StarkweatluT,  17  ^ilasr-.  240;  Titcomb  v.  Ins.  Co.  8  Mass.  326. 


3iS  JUDICI^VL   AND   EXECUTION    SALES. 

§  1076.  A  sale  and  transfer  of  bank  stock  to  tlic  bank  by  a 
stockholder,  after  imperfect  le\"y  of  a  writ  of  attacliment 
tliereon,  and  before  levy  of  execution  in  tlie  attachment  pro- 
ceedings, carries  title  to  the  stock  as  against  an  execution  sale 
in  the  proceedings  by  attachment. ^ 

§  1077.  The  modern  tendency  is,  in  the  absence  of  statutory 
declaration  on  the  subject,  to  regard  stocks  or  shares  of  incor- 
porated companies  as  a  personal  interest,  even  where  the  tangi- 
ble effects  or  property  of  the  company  is  real  property.  ^ 

§  1078.  They  are  not  strictly  chattels,  but  a  mere  interest 
of  a  personal  nature,  and  the  certificates  are  but  the  evidence 
of  such  interest,  and  are  of  no  value  in  themselves  other  tlian 
as  the  best  proof  of  ownersliijD  of  the  interest  which  they 
represent.  3 

§  1079.  The  current  authority  is  that  such  interest  is  not 
liable  to  levy  and  sale  on  execution  at  common  law,  as  we  have 
herein  before  seen;^  but  are  only  so  by  statute.^ 

§  1080.  When  thus  liable  a  sale  thereof  on  execution  at  law 
emanating  in  attachment  proceedings,  fairly  made  to  a  Ijona 
fide  purchaser,  will  override  a  sale  and  transfer  of  certificates 

'  Stamford  Bank  v.  Ferries,  17  Conn.  259. 

-  Redfield,  Railways,  38;  Gilpin  v.  Howell,  5  Pcnn.  St.  57;  Angel  & 
Ames,  Corps.  Sees.  557,  558,  559 ;  Tippett  xi.  Walker,  4  IMass.  595 ;  Johns  v. 
Jolins,  1  Ohio  St.  350;  Arnold  v.  Ruggles,  1  R.  I.  165;  How  v.  Stark- 
weather, 17  Mass.  243;  Denton  -y.  Livingston,  9  Johns.  100;  Planters' Bank 
V.  j\Ierchants'  Bank,  4  Ala.  (N.  S.)  753 ;  The  State  «.  The  Franklin  Bank, 
10  Ohio,  91.  But  otherwise,  if  the  property  be  land  and  is  vested,  not  in 
tlie  corporation,  but  in  the  individual  shareholders.  Augell  &  Ames, 
Corps.  Sec.  559. 

^  Angell  &  Ames,  Corps.  Sees.  5G0,  5G1;  Agricultural  Bank  r.  Burr,  11 
Shcp.  256;  The  Same  v.  Wilson,  11  Shcp.  273. 

*  Gue  «.  Tide  Water  Canal  Co.  24  How.  257,  and  ante,  No.  1  of  this  chap, 
ter;  Evans  «.  Monett,  4  Jones'  Eq.  (N".  C.)  227;  Ross  «.  Ross,  25  Geo.  297; 
Angell  &  Ames,  Corps.  558,  559 ;  James  «.  Pontiac  Plank-road  Co.  8  Mich. 
91;  Coe  V.  Columbus  &  C.  R.  R.  Co.  10  Ohio  (N.  S.)  372;  Western  Penn. 
R.  R.  Co.'u.  Johnson,  59  Penn.  St.  290;  Stewart  «.  Jones,  40  Mo.  140. 

*  Angell  V.  Ames,  Corps.  Sees.  588,  589 ;  Foster  v.  Potter,  37  Mo.  525 ;  Gue 
f.  Tide  Water  Canal  Co.  4  How.  257;  Weaver  ».  Huntingdon,  etc.,  R.  R. 
Co.  50  Penn.  St.  314;  How  v.  Starkweather,  17  Mass.  240;  Denny  o.  Hamil- 
ton, 16  Mass.  402;  Planters'  Bank  v.  Leavens,  4  Ala.  fX.  S.)  753. 


S.ILES   OF   FEANCIIISES,    rKOrEKTY    AND   STOCKS.  349 

prcviouslj  made  in  good  faitli,  if  no  notice  be  given  to  tlic 
corporation  of  sucli  sale.^ 

§  lOSl.  A  state,  or  mnnicipal  government,  or  corporation, 
by  becoming  a  stockliojder  in  a  business  corporation  descends 
to  tlie  level  of  individual  stockliolders  of  the  same  company; 
can  claim  no  riglits  and  no  exemptions  but  those  which  private 
stockholders  may  claim." 

§  10S2.  As  a  sequence  from  this  it  would  seem  to  follow 
that  if  shares  of  ordinary  or  private  stockholders  are  by  law 
liable  to  execution  sale,  so  are  those  of  the  state  or  municipal 
corporation,  except  that  so  far  as  relates  to  the  shares  of  a 
sovereign  state,  it  not  being  liable  to  suit  there  can  be  no  writ 
of  execution  against  it. 

§  10S3.  But  what  property  or  interests  a  municipal  corpora- 
tion may  buy  it  may  also  sell,  miless  there  be  a  restraining 
clause  in  the  charter  or  the  law  to  the  contrary  ;3  and  it  is  well 
settled  that  what  an  owner  may  sell  himself,  may  be  sold  on 
execution,  if  there  be  no  law  to  the  contrary.* 

§  lOSi.  ^Vlien  shares  of  stock  are  levied  on  by  more  than 
one  execution  and  sold  nnder  the  senior  levy,  the  surplus  funds, 
if  any,  must  be  paid  over  on  the  junior  levy.^ 

§  10S5.  A  requirement  of  the  act  of  incorporation,  Avlicrc 
the  incorporation  is  by  act  of  assembly,  defining  the  manner 
of  executing  and  selling  stocks  or  shares,  supercedes  in  tliat 
resj^ect  the  general  law  of  anterior  date  as  to  execution  sales, 
and  must  be  conformed  to." 

§  10S6.  Where  the  officers  of  a  turnpike  company  procured 
shares  in  the  company  sold  on  execution  to  be  bought  in  for 
the  company,  and  then  approj)riated  a  part  thereof  to  them- 

'Blanchard  v.  Dedliam,  12  Gray  (Mass.)  213;  Naglce  ®.  Pacific  Wharf 
Co.  20  Cal.  529;  Littell  v.  Scranton,  42  Peun.  St.  500;  Weaver  v.  Hunting- 
don, etc.,  R.  R.  Co.  50  Penn.  St.  314. 

-  Bank  U.  S.  v.  Planters'  Banlc,  9  Wheat.  904. 

'  Xew  Ark  Town  Council  v.  Elliott.  5  Ohio  St.  113,  121. 

^  Combs  V.  Jordan,  3  Bland  Ch.  39,  42;  The  Carpenter's  Case,  ib.  G40. 

^  Denny  i\  Hamilton,  IG  Mass.  402. 

'  Titcomb  v.  Union  Ins.  Co.  8  Mass.  32G. 


350  JUDICIAL    AND   EXECtrnON    SALES. 

selves,  it  was  liolden  that  suit  therefor  lay  against  them  Ly  ?- 
sliareliolder  for  his  damages  J 

§  lOST.  An  execution  purchaser  of  liypothecated  stocks, 
knowing  them  to  be  such,  takes  subject  to  tlie  right  of  tlic 
pledgee. 3  But  the  contrary  is  the  ruling  if  bought  in  good 
taith  and  witliout  notice.^ 

§  loss.  If  a  company,  by  its  by-laws,  have  a  lien  on  the 
stock  of  its  stockholders,  an  execution  purchaser  with  notice 
thereof  will  be  postponed  in  favor  of  the  company. ^ 

§  1089.  A  purchaser  of  mortgaged  stocks  at  execution  sale 
takes  subject  to  the  mortgage,  but  is  entitled  to  the  surplus 
proceeds  of  tlie  mortgage  sale,  if  any.^ 

§  1090.  The  court  lay  down  the  rule  in  Weaver  v.  The 
Huntingdon,  etc.,  Railroad  Gom/pany,  that  railroad  stocks,  in 
Pennsylvania,  standing  on  the  books  in  the  name  of  the  real 
owner,  are  liable  to  levy  and  sale  on  execution  against  such 
o^^lcr;  but  bank  stocks,  in  the  same  state,  being  ordinarily 
by  law  of  the  state  subject  to  liens  for  any  indebtedness  of 
the  stockholder  to  the  bank,  should  be  levied  by  attachment 
])roccedings  and  garnishee,  in  which  the  precise  interest  of 
the  del)tor  is  necessarily  ascertained,  whereby  useless  expenses 
and  litigation  may  be  avoided  in  case  the  stock  be  so  subject 
to  prior  lien  that  no  interest  would  pass  by  sale."^ 

'  Kinnnel  v.  Stoves,  18  Peun.  St.  15."). 

2  Western  v.  Bear  River  &  Auburn  Co.  5  Cal.  186 ;  Tuttic  v.  Walton,  1 
Geo.  43;  West  Branch  R.  R.  Co.  v.  Armstrons?,  40  Penn.  St.  278. 

'■"  New  York  &  New  Haven  R.  R.  Co.  v.  Schuyler,  38  Barb.  534. 

*  Tuttle  V.  Walton.  1  Geo.  43;  West  Brancli  R.  R.  Co.  «.  Armstrong,  40 
Penn.  St.  278;  Mechanics'  Bank  v.  Merchants'  Bank,  45  Mo.  51S ;  Perpetual 
Ins.  Co.  V.  Goodfellow,  9  Mo.  149. 

''  Foster  v.  Potter,  37  Mo.  525. 

6  Weaver  v.  Huntingdon,  etc.,  R.  R.  &  Canal  Co.  50  Penn.  St.  14.  In  this 
case  the  court  say:  " If  the  defendant,  therefore,  held  the  stock  in  liis 
own  name,  the  phiintiff  may  proceed  by^.  fa.  and  sale  under  the  act  of 
1819,  or  by  an  attachment  under  the  act  of  1836.  There  is  a  reason  wliy 
the  attachment  is  an  appropriate  proceeding  under  the  act  of  1836,  not 
noticed  by  the  judge  wliose  opinion  was  adopted  in  Lex  v.  Patten.  There 
are  cases  where  the  stock  is  hekl  by  the  party  in  his  own  name,  and  where 
there  is  no  owner  to  make  claim,  but  where  it  is  subject  to  a  cliargc  or 
lien  upon  the  title.  This  is  tlie  case  in  all  bank  stocks  under  the  laws  of 
this  state,  the  stocks  being  liable  to  a  lien  in  favor  of  the  bank  for  debts 


SALES    OF   FKANCIIISES,    mOrEKTY   A2sl)    STOCKS.  351 

§  1091.  A  description  of  tlic  shares,  on  execution  sale,  by 
tlieir  numbers,  is  sufficient,  in  connection  witli  tlie  owner's 
name,i  and  the  actual  possession,  or  surrender  of  the  certifi- 
cates, is  not  necessary  as  regards  the  validity  of  sale  or  trans- 
fer. ^  The  certificates  are  but  the  evidence  of  title,  as  Ave  have 
seen  in  the  first  part  of  the  present  chapter. 

§  1092.  In  Alabama  stocks  are  subject  to  execution  sale  by 
attachment  and  proceedings  in  equity,  under  the  statute. ^ 

III.     ErniCT  OF  Sale. 

§  1093.  Under  the  statute,  in  Massachusetts,  the  execution 
sale  of  a  corporate  franchise  does  not  confer  corporate  capacity 
on  the  purchaser;  it  confers  or  passes  "  the  franchise  with  all 
the  rights  and  privileges  thereof,  so  far  as  relates  to  the  recei\'- 
ing  of  toll,"  and  nothing  more.  The  corporate  capacity  of 
the  company  still  continues  as  if  no  sale  w^ere  made.* 

§  1094.  After  such  sale,  proceedings  for  forfeiture  of  the 
charter,  on  the  part  of  the  state,  are  against  the  corporation 
and  not  against  the  purchaser;  he  is  not  even  necessary  as  a 
party.  ^ 

§  1095.  Though  ordinarily  the  sherifi''s  return  of  execution 
sale  is  not  indispensable  to  the  validity  thereof,  yet  where  a 
sale  of  stocks  is  made  on  execution  for  merely  a  nominal  con- 
sideration, when  compared  with  their  real  value,  and  there  is 
no  return  of  such  sale  showing  advertisement  or  other  parti- 
culars thereof,  or  of  the  sale  itself,  it  will  be  set  aside  on 
motion  of  the  party  in  interest.  More  especially  so  when 
other  circumstances  exist  unfavorable  to  the  fairness  of  the 
sale. '' 

due  to  it  by  the  stockholder.  In  such  cases  it  is  important  to  tlie  rights 
of  the  parties  and  to  save  litigation  that  the  proceedings  by  attachment 
should  be  resorted  to,  and  the  precise  extent  and  character  of  the  claim 
of  the  corporation  ascertained  before  final  execution." 

^  Stamford  Bank  v.  Ferries,  17  Conn.  259. 

-  New  York  &  New  Haven  R.  R.  Co.  v.  Schuyler,  38  Barb.  534. 

'  Bank  of  St.  Mary  v.  St.  Jchn,  25  Ala.  5GG 

■•  Commonwealth  v.  Tenth  Mass.  Turnpike  Co.  5  Cush.  509. 

s Ibid. 

»  State  Bank  of  Missouri  v.  Tutt,  44  Mo.  2G7. 


352  .TUniCIAL   AXD    EXECUTION    SALES. 

§  109u.  In  tlie  case  cited  from  44  Missouri  the  Supreme 
Court  of  that  state  say :  "  The  chief  ground  relied  on  is  tlie 
i]-reguLarity  of  the  sale— that  it  was  made  without  advertise- 
ment, or  notice,  according  to  law;"  that  there  was  evidence 
"  tending  to  show  some  management  to  get  possession  of  the 
bank  stock  at  less  than  its  value;"  that  stocks  wortli  eighty 
cents  sold  for  twelve  cents ;  and  the  only  evidence  of  sale  "  is  a 
mere  inference  of  a  memorandum  or  calculation  of  what  was 
made  by  some  sale." 


PART  SIXTH. 

EXEMPTION   TROU  SALE.  — APPLICATIOK   OF 
PROCEEDS. 


CHAPTER    XXY. 

EXEMPTION  FROM  SALE. 

I.    The  Policy  of  the  Law. 
LL    Its  Legal  Effect. 
III.    "Waivek  Thereof. 

I.     The  Policy  of  the  Law. 

§  1097.  It  is  tlic  humane  policy  of  tlic  law  in  most,  if  not 
<all  the  states,  to  exempt  certain  property,  real  and  personal, 
from  execution  sale. 

§  lOOS.  Tliis  policy  is  the  result  of  a  duty  due  both  to  the 
citizen  and  to  the  state,  as  the  prosperity  of  the  latter  is 
dependant  on  the  security  and  prosperity  of  the  people.  More- 
over, it  is  regarded  as  a  protection  due  to  the  unfortunate  and 
to  the  helpless.  1  It  rests  on  those  same  principles  of  benevo- 
ledce  which  prohibit  imprisonment  for  debt,  and  of  selling 
one's  self  into  slavery.  The  princi]3les  of  humanity,  and  the 
v.'elfare  of  the  state. 

§  1090.  The  exemption  is  the  same  whether  the  liability 
be  contracted  in  the  state  or  out  of  the  state  where  the  judg- 
ment is  taken.  The  law  of  the  former,  or  tribunal  where  the 
judgment  is  rendered  as  it  existed  at  the  date  of  the  contract 
or  act  of  liability  governs  the  case.- 

'  Woodward  v.  Murry,  18  Johns.  400 ;  Kncctlcs  v.  Ncwcomb,  23  N.  Y. 
249 ;  !Mepcr  v.  Moyer,  22  Iowa,  o59. 

'^  Laing  i\  Cunningham,  17  Iowa,  510;  Newell  v.  Ilaydcn,  S  Iowa,  140; 
Ildfenslicn  r.  Cave,  3  Iowa,  287. 

2.1  (353) 


354:  JUDICIAL    AN'D   EXECUTION    SALES. 

II.     Its  Legal  Efeect. 

§  1100.  The  law  in  force  at  tlie  date  of  tlic  contract  governs 
the  rights  of  the  parties  in  controversies  arising  nndcr  tlie 
liomestead  exemption.  And  tliongh  the  Law  he  thereafter 
modified  or  repealed,  still  it  remains  as  a  constitnent  part  of  the 
contract,  and  such  repeal  will  not  repair  the  rights  acquired 
whilst  the  law  was  in  force. 

§  1101.  In  Brodgman  v.  Wilcut,'^  Gri:exe,  Justice,  the  rule 
is  laid  down  in  the  following  language  by  the  Supreme  Court 
of  Iowa:  "The  homestead  law  in  force  at  the  date  of  the  con- 
tract, having  been  a  part  of  it,  the  superceding  of  that  law  bv 
the  substitution  of  the  new  law  in  the  code,  cannot  deprive 
the  debtor  and  his  family  of  the  homestead  rights;  nor  could 
the  repeal  of  the  homestead  law  weaken  or  impair  the  contracts 
made,  or  divest  rights  acquired  while  the  law  was  in  force. 
The  debtor's  right  to  the  homestead  was  acquired  under  the 
law  of  1819,  and  his  liomestead  established  while  that  law  was 
in  force,  and  his  petition  presents  a2:)rimafacie  case,  showing 
his  right  to  the  premises  as  exempt  from  forced  sale  under  the 
law." 

§  1102.  And  so,  upon  repeal  of  a  homestead  law,  or  modi- 
fication thereof,  a  saving  clause  in  the  repealing  act,  saves  to 
debtors  all  rights  of  homestead  which  had  accrued  under  the 
law  thus  repealed,  irrespective  of  the  question  above  referred 
to  as  to  whether,  without  such  saving  clause,  a  repeal  of  the 
law  may  impair,  or  take  away  the  rights  of  homestead,  and  the 
effect  of  contracts  originating  whilst  the  law  was  in  force.^  In 
the  case  cited  from  3  Iowa,  the  court  hold  that  such  saving 
clause  as  effectually  protects  tJie  homestead  from  execution 
sale  fis  would  the  law  if  no  repealing  act  had  passed. 

§  1103.  In  the  same  case  the  court  rule,  substantially,  that 
as  the  exemption  right  is  purely  statutory,  the  debtor,  to  avail 
liimself  thereof,  must  show  the  pcrform:iiu'o  of  all  things  on 

14G.  Grccue,  503,  r>Q(l;  Tiliotsoii  t\  Millnnl,  7:Minii.513;  Ci-onsou  i-. 
Kinzie,  1  How.  olo. 

"  Ilelfcnslicn  v.  Cave,  3  Iowa,  287,  294 ;  Clark  v.  Toltcr,  13  Gray, 
(Mass.)  21. 


ILXEMl'TIOX     FKOM    SAI.IC. 


liis  part  rcf^uii'cd  tlicrcby,  If  any,  as  necessary  to  confer  or  lix 
tlic  right.  1 

§  1104.  Under  the  statute  in  Io"\va,  it  is  lioldcn  tliat  to  con- 
ptitutc  a  homestead  so  as  to  attach  to  the  j^rivilegc  of  exemp- 
tion from  execution  sale,  there  must  be  actual  occnpancy  as  the 
(hvelling  place  of  the  owner,  and  that  a  mere  intention  to  so 
occnpj',  will  not  impart  to  the  projierty  the  legal  attributes  of 
:in  homestead.  In  the  language  of  AVkight,  Justice,  in  the  lead- 
ing case  of  Charless  v.  Lmnbcrson^  "  To  be  the  homestead,  it 
must  be  •  used,'  and  used  for  the  purpose  designed  by  the  law, 
to  wit.,  as  a  home,  a  place  to  abide  in,  a  place  for  the  family."- 
''  A  mere  intention  to  occu]^,  though  subsecjuently  carried 
out,  is  not  sufficient.''^  And  such,  say  the  Iowa  supreme 
court,  is  the  unbroken  series  of  decisions  in  that  state. '^ 

§  1105.  In  Minnesota,  prior  to  the  act  of  April,  18G0,  judg- 
ments were  held  to  be  liens  upon  homesteads,  and  though  the 
latter  were  exempt  from  sales,  so  long  as  occupied  as  such,  it 
was  at  the  same  time  holden,  that  if  the  debtor  removed  from 
or  sold  the  same,  the  homestead  thereby  became  liable  to  levy 
and  sale,  on  execution.^ 

§  HOG.  But  by  the  act  of  April,  ISGO,  "-The  owner  of  a. 
homestead,"  under  the  laws  of  said  state,  "may  remove  there- 
from, or  sell  and  convey  the  same,  and  such  removal,  or  sale 
and  conveyance,"  will  "  not  render  such  homestead  liable  or 
subject  to  forced  sale  on  execution  or  other  j^rocess."  And  it 
is  further  enacted  that  no  judgment  or  decree  of  any  court 
should  thereafter  be  a  lien  on  tlic  homestead  of  the  debtor  for 
jiny  purpose  whatever.  '^ 

'  llelfcnsleiu  r.  Cave,  3  Iowa,  200,  291. 

-  Charless  v.  Lanibcrson,  1  Iowa,  435,  440;  Ilalc  t.  Ileaslip,  l.j  Iowa,  451 ; 
Ilolden  V.  Pinney,  G  Cal.  285;  Benedict  p.  Burnel,  7  Cal.  245;  Wisner  v. 
Farnliam,  2  Mich.  472;  Prior  v.  Stone,  19  Texas,  371 ;  Iloru  ».  Tuft,  39  X. 
II.  478;  True  v..  [Morrill,  28  Vt.  672. 

^  Elston  r.  Robinson,  23  loAva,  208,  211 ;  Christy  v.  Dyer,  14  Iowa,  438; 
Pope  V.  Ewbauk,  18  Iowa,  580;  Cole  v.  Gill,  14  Iowa,  527;  Williams  r. 
Sweetland,  10  Iowa,  51;  Hyatt  f.  Spearman,  20  Iowa,  510;  Campbell©. 
Ayres,  18  Iowa,  252. 

'  Elston  i\  Robinson,  23  Iowa,  211. 

•"'  Tillotson  «.  ]\Iillard,  7  Minn.  513,  520;  Folsom  r.  Carli,  5  Minn,  333. 

«  Tillolson  V.  ]\nilard,  7  Minn.  513,  520. 


oO(>  JUDICIAL   AND    EXECUTION   SALES. 

§  HOT.  In  tlic  case  oi  yolsom  v.  Carll,^  above  relcrrcd  to, 
the  court  say:  "We  hold  that  under  the  exemption  la\v',  as  it 
existed  at  the  time  this  judgment  was  rendered  and  docketed, 
:ind  the  property  sold,  the  lien  of  the  judgment  attached  to  the 
homestead,  as  well  as  to  any  other  real  property  of  the  judg- 
ment debtor.  That  the  exemption  of  the  homestead  was  only 
an  exemption  from  sale  on  execution,  wlule  occupied  by  the 
debtor  or  his  family,  but  did  not  affect  the  lien  of  the  judg- 
ment. That  when  Mclvusick,  the  judgment  debtor,  abandoned 
the  property  as  a  residence,  and  conveyed  it  to  another,  the 
exemption  ceased,  and  the  judgment  creditor  had  then  the 
right  to  enforce  his  lien  by  a  sale  of  the  premises  on  execution 
und  tliat  the  grantee,  Carli,  took  tlie  property  subject  to  the 
lien  of  the  judgment." 

§  1108.  In  Iowa  the  ruling  is  to  the  converse  of  this,  and 
Is  there  lioldcn  under  the  statute  that  the  owner  may  change 
his  homestead  from  time  to  time,  at  pleasure,  and  may  sell 
:md  re-invest,  without  liability  to  execution."  And  so,  like- 
wise, in  regard  to  exempted  personal  propert}'.^ 

§  1109.  In  the  case  of  Lamlj  v.  Shays,^  the  court  hold  that 
although  judgments  are  ordinarily  liens  against  the  real  estate 
of  a  debtor,  yet  they  are  not  so  as  against  the  homestead,  and 
that  the  debtor  may  sell  and  convey  the  homestead  at  pleasure; 
and  the  estate  will  vest  in  the  grantee,  if  so  sold  and  conveyed 
while  occupied  and  used  as  an  homestead.  The  court  holds, 
substantially,  that  a  judgment  lien  is  only  co-extensive  with  the 
])0wer  to  enforce  it  by  sale,  and  that  if  tlie  sale  is  prohibited 
the  lien  is  a  dead-letter. ^  The  court  say,  "  the  right  of  exemp- 
tion continues  until  the  sale  and  delivery  of  the  deed  to  the 
vendee,  and  the  lien  cannot  attach  until  tlie  sale  and  delivery, 
nor  until  after  it  ceases  to  Lc  occupied  by  the  owner;"  and 
tliat,  "  prior  to  this,  the  vendee's  rights  become  absolute."     In 

1  5  Minn.  330,  338. 

'  Pearson  v.  Mintuni,  18  Iowa,  30;  Lamb  v.  Shays,  14  Iowa,  oCT. 

■'  Bevan  v.  Ilaydon,  13  Iowa,  122. 

*  14  Iowa,  567,  .570;  Cummings  v.  Long,  15  Iowa,  41. 

'  Sucli,  too,  is  the  ruling  by  Chief  Justice  Marshall  in  Scriba  t.  Dean. 
1  ]irock.,lG6;  Banl^U.  S.«.  Winston,  3  Brock.,  253;  and  by  Justice  McLkan 
m  Shrew  v.  Jones,  2  McLean,  78. 


EXEMrXION   ritOM   SAI.K.  OO  J 

LamJ)  V.  Shays  the  court  justly  remark,  tliat  "  If  tlic  lien  of  ;i 
judgment  confessed  by,  or  taken  against,  the  husband  alone, 
(and  to  which  the  wife  never  assented,)  can  attach  to,  and  sub- 
ject the  homestead  to  the  payment  of  his  debts,  it  virtually 
destroys  that  peculiar  interest  of  the  wife  in  the  homestead 
which  the  legislature  seems  to  have  been  so  strenuous  to  pro- 
tect." ^ 

§  1110.  It  is  a  principle  of  law,  that  what  a  person  cannot 
do  directly  he  cannot  be  allowed  to  do  indirectly.  From  this 
it  results  that,  as  the  owner  cannot,  by  prior  contract  in  the 
creation  of  a  debt,  waive  the  exemption  by  direct  agreement, 
lie  may  not  bring  about  a  waiver  by  submitting  to  a  judgment 
and  thereby  create  a  lien  which  will  operate  as  such  Avalver. 

§  1111.  Cut  by  the  ruling  in  the  same  case,  Laml)  v.  Shay^, 
if  the  property  ceases  to  be  occupied  and  used  as  a  homestead, 
the  lien  of  the  judgment  then  attaches  thereto  and  it  becomes 
liable  to  execution  sale,  as  other  realty.  The  language  of  the 
court  is  that  "  The  moment  it  ceases  to  be  used  as  such,  the 
lien  attaches,  the  same  as  it  attaches  against  property  acquired 
by  the  judgment  debtor  after  the  judgment  is  rendered,  and 
the  priority  of  liens  can  be  determined,  in  the  same  manner." - 

§  1112.  However  liable  the  homestead  may  be  to  execution 
sale  for  debts  contracted  prior  to  its  occupancy  as  such,  yet, 
ordinarily,  the  creditor  will  be  compelled,  if  required  at  the 
time  so  to  do,  to  exhaust  all  other  property  liable  to  execution 
before  resorting  to  the  homestead.^ 

§  1113.  In  Barker  v.  Uollim^^  it  is  held  that  the  provision 
of  the  Eevlsion  section,  2281,  that  the  homestead,  when  liable, 
shall  not  be  "  sold  except  to  supply  the  deficiency  remaining 
after  exhausting  tlie  other  property  of  the  debtor  which  is 
liable  to  execution "  applies  only  to  the  homestead  while  it 
remains  the  property  of  the  debtor  for  whose  debt  it  is  sought 
to  be  sold,  and  not  to  the  homestead  property  after  it  is  trans- 
ferred by  conveyance  to  another  party.     The  Supreme  Court, 

'  14  Iowa,  TiTl. 

-  Lamb  t\  Shays,  14  Iowa,  570. 
3  Dencgre  ■».  Haun,  14  Iowa,  240. 
•  30  Iowa,  413. 


o5S  JUDICLYL   AXD   EXECUTION    SALES. 

Cole,  Justice,  after  reciting  the  provision  above  referred  to, 
sav:  "The  difficulty  with  defendant  Cogshill  is,  that  he  is  not 
the  debtor,  and  is  not  within  the  Language  or  the  spirit  of  the 
section  quoted.  His  lioraestead  was  not  within  the  contem- 
plation of  the  parties  to  the  contract  sued  on.  The  creditor 
will  be  held  to  liavc  contracted  with  reference  to  all  the  phases 
of  homestead  claimed  by  his  debtor;  but  not  as  to  any  such 
claim  by  parties  who  should  voluntarily  purchase  the  property 
with  full  knowledge  of  the  incumbrance  upon  it."  The  case 
above  cited  was  brought  to  foreclose  a  mortgage,  to  which  the 
homestead  was  justly  liable,  in  the  hands  of  the  mortgage 
debtor,  but  only  so,  under  the  statute,  after  the  exhaustion  of 
the  debtor's  other  property  subject  to  execution.  Tlie  j^rop- 
erty  was  sold  by  the  mortgage  debtor  to  Cogshill,  who  was 
made  a  co-defendant  in  the  foreclosure  proceeding.  He  relied 
on  the  statutory  privilege  above  referred  to,  as  a  protection  and 
defense  until  the  debtor's  other  j)roperty  should  be  exhausted. 
Thus  the  question  arose  which  elicited  the  decision  that  the 
privilege  of  exemption  does  not  in  such  cases  inure  to  the 
purchaser  of  the  mortgaged  premises.  The  homestead,  that 
is,  the  homestead  of  the  debtor,  is  not  to  be  sold  until  his 
other  property,  subject  to  execution  sale,  is  applied  by  sale  to 
tlie  discharge  of  the  debt.  Then  only  for  the  balance.  But 
the  court  hold  that,  having  been  transferred  and  being  no 
longer  the  debtor's  homestead,  it  is  no  longer  entitled  to  bo 
exempted  under  the  statute. 

§  1114.  In  Tillotson  v.  Ilillard,^  it  is  held  that  the  act  of 
April  30th,  18G0,  though  valid  as  to  transactions  occurring 
after  it  took  efiect,  is  unconstitutional  and  void  as  to  contracts 
and  judgments  anterior  thereto  in  date;  that  its  operation  is 
prospective  only,  and  that  it  applies  to  such  judgments  and 
contracts  as  are  subsequent  thereto  in  date,  and  not  those  exist- 
ing at  the  time  of  its  enactment. 

§  1115.  In  tlie  subsequent  case  of  Kelly  v.  Balder,-  the 
Supreme  Court  of  Minnesota  hold,  that  when  the  homestead 
is  confined  to  the  proper  quantity  or  value  required  or  limited 

'  7  Minn.  510. 

'  10  Minn.  154, 157. 


ICXEMPTION   FROM    SALE.  359 

by  liuv,  and  is  actually  occupied  by  the  dwelling-house  and 
residence  of  the  party,  he  can  subject  such  j)arts  thereof  as  are 
not  covered  by  his  dwelling-house  "  to  any  use  which  he  "  may 
"choose,"  without  rendering  any  part  of  it  liable  to  execution 
sale. 

§  1110.  In  Iowa  the  riding  is  so  I'ar  the  converse  of  this 
that  where  the  occupant  of  a  three-story  house  and  half  lot, 
used  and  holden  as  an  homestead,  underlet  the  lower  story  and 
cellar  to  be  used  as  a  store,  the  Supreme  Court  held,  (Stockton, 
Justice,  dissenting,)  that  the  j)art  so  underlet  was  liable  to  exe- 
cution sale.i  But  we  would  not  be  understood  as  assentino-  to 
the  correctness  of  this  decision;  nor  do  we  apprehend  that  it 
will  be  ap]>roved  of  and  followed  by  subsequent  rulings,  should 
like  cases  hereafter  occur.  We  rather  re2:ard  the  dissentinc: 
opinion  of  Justice  Stocktox  as  the  more  sound,  though  not 
the  more  authoritative  opinion. 

§  1117.  In  Ohio,  by  the  act  of  April,  1S57,  it  is  provided 
that  "  no  married  man  shall  sell,  dispose  of,  or  in  any  manner 
part  with,  any  personal  property,  which  is  now  or  may  here- 
after be,  exempt  from  sale  on  execution,  without  having  lirst 
obtained  the  consent  of  his  wife  thereto."  And  that,  "  If  any 
married  man  shall  violate  the  provisions  of  the  foregoing  sec- 
tion, his  wife  may,  in  her  own  name,  commence  and  prosecute 
to  final  judgment  and  execution  a  civil  action  for  the  recovery 
of  such  property  or  its  value  in  money."  It  is  held,  by  the 
Supreme  Court  of  that  state,  that  under  this  statute,  where  the 
husband,  without  the  concurrence  of  the  "vvife,  mortgaged  j)i'op- 
erty  otherwise  exempt  from  execution,  and  the  same  w^as,  after 
breach  of  the  mortgage,  sold  on  execution  emanating  from  a 
judgment  for  the  mortgage  debt,  the  wife  could  maintain  her 
action  for  the  property  thus  sold.  This,  too,  although  the  pro- 
ceedings were  not  by  foreclosure  of  the  mortgage,  but  by  an 
action  and.  judgment  at  law  for  the  mortgage  debt;  fur  the 
execution  of  the  mortgage  was  holden  to  be  a  disposal  of  the 
property  which  estopped  the  husband  from  claiming  the  benefit 
of  exemption." 

'  Rhodes  v.  McCormack,  4  Io-\va,  3G8. 
■  Colwell  V.  Carper,  15  Ohio  St.  279. 


3 GO  JUDICIAL   AND   EXECUllON   SALES. 

§  Ills.  Ill  Iowa  it  is  lield  tliat  a  tliresliing-macliiiic,  used 
hy  the  former  for  tliresliing  liis  own  grain,  and  for  tlircsliing 
the  grain  of  others  for  liire,  does  not  come  within  tlie  meaning 
of  the  statute  wdiich  exempts  from  execution  sale  "  the  proper 
tools  or  implements  of  a  farmer."  The  Supreme  Court  of  that 
state  say,  DiLLOX,  Justice:  "We  are  of  opinion  that"  it  is 
"  intended  to  exempt  only  the  ordinary  and  usual  tools  of  hus- 
bandry, and  "  does  "  not  extend  to  a  threshing-machine  owned 
by  a  farmer,  to  thresh  his  own  grain,  and  that  of  others  for 
hire;"  that  the  "law  makes  no  extravagant  exemptions.  It  is 
intended  for  the  poor,  rather  than  the  rich.  Its  design  is  to 
enable  the  debtor  and  his  family  to  live,  by  shielding  from  the 
creditor  the  ordinary  and  usual  means  of  acquiring  a  liveli- 
hood."! 

§  HID.  In  AVisconsin,  state  exemption  laws  hare  been 
holden  to  apply  to  process  of  execution  in  the  hands  of  the 
United  States  Marshal,  issued  on  judgment  in  a  court  of  the 
United  States;"  and  that  property  exemjot  by  law  is  not  in 
legal  custody  when  taken  by  a  United  States  Marshal  and  held 
on  execution  issued  from  a  Federal  court;  that,  therefore,  an 
action  of  replevin  will  lie  in  a  state  court,  at  the  suit  of  the 
execution  debtor,  against  such  officer  to  recover  the  property 
so  taken  and  held  by  him.^  But  however  correct  tlie  former 
part  of  this  decision  is,  on  the  supposition  that  the  process 
and  "proceedings  thereon"  of  the  state  courts  have  been 
adopted  by  congress  or  by  order  of  the  United  States  court, 
yet  the  doctrine  deduced  therefrom,  that  an  action  of  replevin 
will  lie  against  the  marshal  on  process  from  a  state  court,  is 
unsound. 4 

§  1120.  As  to  the  application  of  state  exemption  laws  to 
I)rocess  from  a  United  States  court  in  the  hands  of  the  mar- 
shal, that  depends  upon  the  adoption  of  the  state  laws,  for  the 
particular  district,  upon  that  subject.  If  by  rule  of  court,  or 
by  act  of  congress,  (as,  for  instance,  was  done  by  the  act  of 

'  Z^Icycr  V.  Meyer,  23  Iowa,  8o9,  .375. 

-  Gilinan  v.  "Williamson,  7  Wis.  329. 

^Ibid. 

■•  Freeman  v.  Howe,  24  IIow.  440,  and  cases  there  cited. 


EXEMPTION   FROM   SALE,  301 

congress  of  May  lOtli,  182S,)  siieli  exemiotion  laws  have  been 
adopted  as  rules  of  action  governing  processes  from  tlie  United 
States  conrt,  then  they  are  to  be  observed  and  conformed  to  in 
all  their  incidents  of  forthcoming  bonds,  appraisement  and 
exemj-stions,  by  the  United  States  Marshal,  in  the  execution  of 
process  that  may  come  to  his  hands.  But  if  not  so  adopted, 
then  he  will  be  governed  by  the  laws  of  the  United  States, 
and  the  exemption  laws  of  the  state  will  not  be  observed  J 

§  1121.  If,  however,  such  exemption  laws  are  adopted,  so  as 
to  become  a  rule  of  action  to  the  marshal  in  executing  the  pro- 
cesses of  the  Federal  courts,  and  he  violate  those  laws  by  levying 
on  and  taking  possession  of  property  exempt  from  execu- 
tion sale,  or  under  any  other  circumstances  make  a  wrongful 
seizure,  yet  no  action  will  lie  against  him  in  a  state  court 
predicated  on  processes  designed  to  wrest  such  property  out 
of  his  possession ;  for  his  levy  and  possession  places  the  prop- 
erty in  the  custody  of  the  court,  and  no  other  court  can  disturb 
such  possession.  3  To  obtain  possession  from  the  marshal,  a 
better  claimant,  if  there  be  one,  should  apply  by  petition  to 
the  United  States  court  from  which  emanated  the  process  under 
which  the  property  is  holden.^ 

§  1122.  But  this  rule  of  law  is  no  bar  to  a  personal  action 
for  damages  in  money,  in  a  different  court,  against  the  marshal 
for  a  wrongful  levy  of  property  not  subject  to  execution ;  and, 
therefore,  trespass  or  trover  may  be  maintained  in  such  cases.  ^ 

§  1123.  It  is  moreover  held  that  when,  by  such  acts  of  con- 
gress or  order  of  court,  the  state  j)rocess  and  forms  are  adopted 
in  regard  to  final  execution,  that  such  adoption  carries  with  it 
the  attendant  legal  attributes,  incidents  and  inhibitions,  that 
under  the  state  laws  apply  to  like  final  pj'ocess  from  the  state 

'  Brigbtly's  Digest,  vol.  i.,  2G8,  2G9 ;  United  States  v.  Knight,  14  Pet.  301 ; 
Catlieswood  v.  Gapete,  2  Curt.  C.  C.  94;  Binus  v.  Williams,  4  McLean,  580; 
Koss  V.  Duvall,  13  Pet.  45;  Amis  b.  Smith,  IG  Pet.  303;  United  States  Bank 
V.  Halstead,  10  Wheat.  51;  Beers  v.  Iluughton,  9  Pet.  320,  3G2;  McNutt  i\ 
Brand,  2  How.  9. 

^  Freeman?).  How. 24  now.440;  Taylor  v.  Carryl,20  IIow.  583;  Ilogan  r. 
Lucas,  10  Pet.  400. 

=  Buck  V.  Colbath,  3  Wall.  334,  345;  Freeman  v.  Howe,  20  IIow.  440. 

*  Buck  V.  Colbath,  3  Wall.  334. 


?>03  JUDICIAL  AXD   EXECCnON   SALES. 

conn;  aiid  as  a  consequence,  the  state  laws,  so  far  as  constitu- 
tional, in  regard  to  exemptions  from  execution  sale,  and  in 
i-cference  to  appraisement  before  execution  sale,  will  tlien  apply 
to  tlie  execution  of  like  final  process  in  tlie  hands  of  the  United 
States  Marshal  in  like  manner  as  if  the  process  was  from  the 
state  court  and  being  executed  b}^  the  sheriff,  whether  the  same 
])Q  expressly  adopted  or  not;^  with  this  difference,  however, 
that  if  the  appraisers  summoned  by  the  marshal  fail  to  attend 
and  discharge  their  duties,  then  the  marshal  may  sell  without 
appraisement,  as  hereinbefore  stated.  ' 

§  112-i.  Under  the  statute  in  Missouri,  personal  property 
to  a  certain  amount  in  value  is  entitled  to  be  exempt  from  exe- 
cution sale,  and  the  debtor,  in  case  of  levy,  has  a  right  to  select 
the  property.  Under  this  statute  it  is  the  duty  of  the  officer 
levying  an  execution  on  personal  effects,  to  notify  or  inlbrjn  the 
execution  debtor  of  his  right  to  make  the  selection.  The  omis- 
sion of  the  officer  so  to  do,  and  more  especially  refusal  on  liis 
part  to  allow  the  debtor  the  privilege  thus  given  by  the  law, 
is  an  oppression  and  wrong  for  which  an  action  may  be  main- 
tained. ^ 

§  1125.  By  tlie  laws  of  Missouri,  property  and  wages,  which 
are  otherwise  exempt  from  liability  for  debt,  become  subject  to 
attachment  whenever  the  debtor  '-is  about  to  remove  out  of" 
the  state,  "  with  intent  to  change  his  domicile."  In  such  case 
''all  tliat  he  possesses  is  liable  to  attachment. "^ 

III.     Waiter  Tueueof. 

§  112G.  Whether  a  waiver  of  the  benefit  of  the  exemption 
law,  embodied  by  a  contracting  party  in  the  contract,  will  ope- 
rate to  render  liable  to  execution  sale,  property  exempt  tlierc- 
fj'om  by  law,  is  a  point  decided  differently  in  different  states. 

§  1127.  In  loAva  it  is  held  that  the  contract  of  exemption 
is  nugatory,  and  does  not  render  exemj)ted  property  liable  to 

1  United  States  v.  Ivniglit,  14  Tet.  301;   3  Sumn.  3oS;  Amis  v.  Smith,  IG 
Tot.  303. 
'  State  V.  Eomer,  44  Mo.  99. 
'  The  State  v.  Lais,  46  Mo.  108. 


EPEMrXION    FKOil   SALES  363 

sale  on  execution.  That  tlie  enactment  is  a  matter  of  state 
policy,  and  not  that  whicli  the  citizen  may  disregard.  That 
although  the  same  property  might  be  sold  by  subjecting  it  to 
a  mortgage  foreclocure,  yet  the  mere  assent  of  the  debtor 
exj)rcssed  in  the  contract  of  indebtedness,  will  not  render  the 
statute  inoj)erative,  and  make  the  property  liable  to  seizure  on 
execution,  and  to  sale  thereon.  That  the  functions  of  the  writ 
or  powers  of  the  officer  can  not  thus  be  enlarged.  And  this 
Avould  seem  to  me  the  better  view  of  the  case.  It  is  the  interest 
of  the  state  to  protect  the  welfare  of  its  people  against 
improvidence  and  against  oppression.  The  operation  of  the 
exemption  law,  in  its  beneficence,  extends  to  the  family,  if  there 
1)0  one,  of  the  contracting  debtor,  as  well  as  to  the  debtor  him- 
self. If  by  his  bare  consent,  the  law  be  defeated,  and  that 
v/itliout  consideration  or  benefit,  the  exigencies  of  the  result 
fulls  not  on  the  debtor  alone,  but  on  those  whom  he  is  bound 
by  law  to  provide  for  and  protect;  on  those  whos^e  hands  arc 
tied  by  infancy  or  coveture,  and  who  therefore  are  unable  to 
lielj)  themselves.  There  would  be  fully  as  much  plausibility 
in  contracting  for  personal  imprisonment,  as  of  old,  for  debt, 
and  which  the  state  has  abolished.  ISTo  process  at  law  could  in 
either  case  execute  the  contract.  The  office  of  the  writ  could 
not  thus  be  enlarged.  It  is  in  either  case  a  contract,  if  not 
expressly  prohibited,  at  least  against  the  policy  of  the  law,  and 
ibr  tlie  enforcement  of  which  no  process  of  execution  exists  at 
law.  If  its  enforcement  were  attainable  at  all,  it  could  only 
be  by  specified  j^erformance,  which  would  operate  unecpially, 
as  it  is  never  awarded  in  personal  matters;  and  if  it  were,  could 
not  be  thou«;ht  of  for  a  moment  to  enforce  an  arranircment 
made  against  the  policy  and  moral  interest  of  the  law.^ 

§  1128.  In  Pennsylvania,  and  some  others  of  the  states,  the 
ruling  prevails  to  the  contrary,  and  the  waiver  is  allowed  to 
render  the  property  liable  to  execution  sale,  but  to  our  mind 
the  functions  of  the  writ  and  powers  of  the  officer  cannot  be 

*  Curtis  V.  O'Brien,  20  Iowa,  377;  Troutman  ■».  Gowing,  IG  Iowa,  415; 
Wariubold  v.  Sclilicting,  IG  Iowa,  243 ;  Woodward  v.  Muny,  18  Johns.  400; 
j\raxwell  i\  Read,  7  Wis.  582 ;  Kneetle  v.  Newcomb,  22  N.  Y.  249 ;  Crawford 
V.  Lockwood,  0  IIow.  Pr.  N.  Y.  547;  Gilmau  v.  Williams,  7  Wis.  C2D. 


304  JUDICIAL   AND   EXECUTION   SALES. 

thus  enlarged  by  agreement  of  parties.  If  the  policy  of  tlic 
state  was  not  in  the  way,  the  only  force  of  such  sale  would  bo 
by  estoppel,  which  may  not  be  invoked  to  sustain  acts  done 
against  the  policy  of  the  law,  and  therefore  cannot  be  resorted 
to  in  favor  of  such  sales  where  the  policy  of  the  law  regards 
them  with  disfavor.  Why  not,  by  like  agreement,  restore 
imprisonment  for  debt,  although  by  law  it  is  abolished?  AYc 
find,  however,  that  by  the  rulihg  in  several  of  the  states,  the 
exemption  is  holden  to  be  removed  when  there  is  a  waiver 
thereof  in  the  original  contract. ^ 

§  1131.  But  notwithstanding  the  ruling  in  Iowa,  that  by  a 
ootcmporancous  agreement,  at  the  time  of  contracting  the 
indebtedness,  the  debtor  cannot  so  waive  the  benefit  of  the 
exemption  law  as  to  deprive  him  of  the  right  to  avail  himself 
of  it  subsecjuentl}'  when  there  is  a  levy  to  satisfy  the  indebted- 
ness, it  is  nevertheless  holden  by  the  same  court  that  by  sur- 
rendering to  tlie  oflicer  property  to  be  levied  on,  upon  a  writ 
of  execution  by  the  debtor,  he  thereby  estops  himself  from 
reclaiming  tlie  same  from  being  sold,  and  loses  in  that  respect 
the  ])enefit  of  the  statute.  That  having  voluntary  rendered  u]> 
property  to  be  levied  on  and  sold,  as  liable  to  such  proceeding, 
he  should  not  thereafter  be  allowed  to  say  it  is  of  a  different 
character.  2 

§  1132.  lu  Indiana,  where  the  ruling  is  in  f^ivor  of  a  waiver 
of  exemption,  there  is  a  constitutional  provision  that  "  the 
privilege  of  the  debtor  to  enjoy  the  necessary  comforts  of  life 
should  be  recognized  by  wholesome  laws,  exempting  a  reason- 
able amount  of  property  from  seizure  for  the  payment  of  any 
debt  or  liability  hereafter  contracted;  and  there  should  be  no 
imprisonment  for  debt,  except  in  cases  of  fraud." 

§  1133.  In  Indiana,  then,  we  see  that  both  the  exemption 
from  sale  and  from  imprisonment  for  debt  rest  upon  the  same 

'  Case  V.  Deumore,  23  Pciin.  St.  93;  Louck's  Appeal,  24  Penn.  St.  42G; 
Lino's  Appeal,  3  Grant's  Cas.  19G;  Jolinson's  Appeal,  1  Casey,  116;  Bro-vvne 
c.  Swiley,  31  Penn.  St.  225;  Smith's  Appeal,  23  Penn.  St.  310;  The  State 
CD  rcl.  V.  Mclonge,  9  Ind.  19G ;  Eltzroth  v.  Web?lcr,  15  Iiul.  21  •  Chamberlain 
e.  Lylc,  3  Mich.  448. 

2  Ilichards  v.  Ilaincs,  30  Iowa,  574 


iixEMi-noN  Fii(>:,i  s.vLi:.  365 

liigli  ground  of  constitutional  autliority,  subject  simply  to 
regulation  by  the  logislatnrc  as  to  tlic  amount  of  property  to 
be  exempted.  The  courts  there  hold  that  the  debtor  may  waive 
the  exeraj)tion.  ^  Would  not  tiie  same  ruling  apply  with  equal 
pro]3riety  to  the  imprisonment?  And  are  the  courts  prepared 
to  go  thus  far?  We  think  the  functions  of  the  writ  cannot  be 
extended  to  cither,  by  mere  private  will  of  the  parties. 

§  1134.  We  conceive  the  correct  doctrine  to  be  holden  in 
the  case  cited  from  20  Iowa,  and  kindred  cases.  In  the  case 
from  Iowa  tlie  court  sa}-:  "We  are  agreed  in  the  conclusion 
that  a  person  contracting  a  debt,  cannot,  by  a  cotemporaneous 
and  simple  waiver  of  tlie  benefit  of  the  exemption  lav/s,  entitle 
the  creditor,  in  case  of  failure  to  pay,  to  levy  his  execution, 
against  defendant's  objection,  upon  exempt  property." 

§  1135.  As  the  same  law  also  exempts  from  liability  to  debt 
by  garnishee,  attachment,  or  execution,  the  money  proceeds 
of  daily  labor,  earned  within  a  given  time,  in  man}'  of  the 
states,  it  follows  by  a  parity  of  reasoning,  that  wherever  the 
doctrine  of  the  Iowa  court,  above  referred  to,  prevails,  sucli 
'earnings  or  wages,  whether  payable  in  money  or  j^roperty,  arc 
in  like  manner  incapable  of  being  subjected  to  tlie  debt  of  a 
debtor,  by  waiver  of  tlio  exemption  at  the  time  of  and  in  the 
contract  creating  the  debt.  The  cases  are  j^arallcl.  And  by  a 
like  reasoning  it  would  likewise  follow  that  wherever  the 
creditor  may  reach  the  one,  he  may  also  reach  the  other. 

§  1130.  In  Kneetles  v.  Nev:coml).  and  Woodicanl  v. 
3fiirry,"  it  is  held  that  the  object  of  the  law  is  "  to  promote 
the  comfort  of  families  and  to  protect  them  against  tlie  impro- 
vidence of  their  head."  That  "  one  object  of  municipal  law 
is  to  promote  the  general  welfare  of  society,"  and  that  "  the 
exemption  laws  seek  to  accomplish  this  by  taking  from  the 
liead  of  the  family  the  power  to  deprive  it  of  certain  property 
by  contracting  debts  which  shall  enable  the  creditors  to  take 
such  property  on  execution."  In  the  case  from  22  ISTcw  York 
the  whole  subject  is  discussed  with  much  ability.     The  court 

'  ?]ltzrotli  V.  Webster,  If)  Ind.  21 ;  The  State  ex  relv.  IMclongc,  9  Ind.  100. 
^Woodward  r.  ?.Iuny,  18  Johns.  400;  Kneeiles  r.  Newcomb,  22  K.  Y. 
249 


360  JUDICLUL    AND   EXJX'UTION    SALES. 

tlicrc  say:  '•  Could  a  person,  wlien  contracting  a  debt,  agree, 
for  instance,  that  tlie  act  abolisliing  imprisonment  for  debt 
should  not  apply  to  any  judgment  whicli  should  be  recovered," 
on  a  certain  contract,  "  or  that  on  such  judgment  there  should 
be  no  right  in  the  debtor  to  redeem  any  land  tliat  might  be 
sold  under  the  execution,  or  that  he  should  not  be  discharged 
under  any  insolvent  act  V^  The  court  say,  "  Clearly  this  could 
not  be  done;"  and  that  "upon  the  same  principle,"  the  debtor 
''  could  not,  when  contracting  the  debt,  agree  that  exempt 
property  might  be  taken  on  execution."  That  "  the  law  does 
not  permit  its  process  to  be  used  to  accomplish  ends  which  its 
policy  forbids,"  though  such  use  be  agreed  to.  And  so  in  the 
case  of  Maxioell  v.  liced,^  the  court  say,  that  "  agreements  to 
waive  all  right  of  exemption  are  null  and  void  as  against  the 
policy  of  the  law."  The  constitution  of  Wisconsin  contains  a 
provision  recjuiring  the  Legislature  to  exempt  a  reasonable 
amount  of  property  from  sale  on  execution.  This  provision  is 
substantially  the  same,  if  not  in  the  identical  words  of  the 
provision  for  the  same  subject  above  recited,  as  in  the  constitu- 
tion of  Indiana.  In  view  of  this,  the  Wisconsin  Supreme 
Court  aptly  ask  the  question  by  way  of  illustration,  "  Can  the 
contracting  parties  not  only  repeal  a  statute,  but  upset  the 
constitution  itself  ?"  That  court  wisely  assert  that  "  the  citizen 
is  an  essential  elementary  constituent  of  the  state;  that  to 
])reserve  the  state  tlic  citizen  must  be  protected;  and  that  to 
live  he  must  have  the  means  of  living;  to  act  and  to  be  a  citi- 
zen he  must  be  free  to  act,  and  to  have  somewhat  wherewith 
to  act,  and  thus  to  be  competent  to  the  performance  of  his 
high  functions."  Hence  the  state  j^olicy,  say  the  court,  of 
exempting  such  interests  from  sale  on  execution  as  shall  enable 
him  to  discharge  such  services  and  devotions  as  may  be  due 
from  him  to  the  commonweal tli. 

§  1137.  In  Illinois  a  waiver  of  the  homestead  exemption  is 
allowed  by  statute,  "  if  the  same  shall  be  in  Avriting,  subscribed 
Ijy  the  householder  and  his  wife,  if  he  have  one,  and  acknowl- 
edged in  the  same  manner  as  convcj'ances  of  real  estate  arc  bv 

'  7  Wis.  r>S2,  594. 


EXEMITION    FK(\M    SALE.  367 

law  required  to  be  acknowlcdi^ed."  It  is  moreover  declared  to 
bo  tlic  "  object  of  the  act  to  require  in  all  cases  the  signatui-e 
and  acknowledgment  of  the  wife  as  conditions  to  the  aliena- 
tion of  the  homestead."  'Nov:,  under  this  state  of  the  law  in 
Illinois,  where  a  homestead  had  been  conveyed  away  by  fraudu- 
lent conveyance,  and  was  uncovered  in  chancery  on  a  creditor's 
bill,  and  without  such  waiver  in  writing,  was  sold  by  decree 
of  the  court,  it  is  holden  that  in  an  action  of  ejectment  involv- 
ing title  imder  the  decree  and  sale,  the  homestead  could  not  be 
set  up  at  law  in  such  collateral  proceeding;  that  the  court 
having  jurisdiction  of  the  parties,  the  decree  is  final;  that  no 
claim  of  homestead  having  been  interposed  at  the  trial  on  the 
creditor's  bill,  it  cannot  now  for  the  first  time  be  made.^ 

§  1138.  The  case  of  Ifillcr  v.  Sherry  does  not  involve  the 
question  of  direct  power  to  waive  the  exemption,  but  rests 
upon  the  unreversed  decree  of  the  court  ordering  the  property 
to  be  sold  in  the  ordinary  course  of  judicial  proceedings,  made 
without  any  intervention  at  the  time  that  the  property  was  a 
homestead.  Of  course  a  regular  and  a  fair  sale,  to  a  honafide 
purchaser,  made  under  such  a  decree,  would  carry  the  title  and 
could  not  be  questioned  in  a  collateral  proceeding  upon  the 
plea,  or  showing,  that  the  property  sold  was  the  homestead. 
This  being  the  ordy  point  relied  on  as  against  the  validity  oi" 
the  sale,  its  validity  was  rightfully  sustained  in  such  collateral 
proceedings.  Whether  right  or  wrong  tlie  decree  was  binding 
until  set  aside  or  reversed,  and  so  likewise  the  sale  made  in 
pursuance  thereof.  But  where  the  power  to  waive  the  exemp- 
tion, as  in  Illinois,  is  given  by  statute,  by  the  same  authority 
that  confers  the  exemption,  there  could,  of  course,  no  question 
arise  as  to  the  ability  of  the  debtor  to  contract  for  ji  waiver  of 
the  privilege.  In  the  case  of  ^filler  v.  Sherry,"  the 
homestead  seems  to  have  been  of  greatly  larger  value  than 
that  allowed  for  exonption  by  the  statute  of  Illinois.  Hence 
the  inducement,  perhaps,  to  the  fraudulent  conveyance.  The 
debtor  still  continued  in  possession  notwithstanding  the  con- 

'  Miller  v.  Sliony,  2  TV';ill.  370,  and  so  in  Iowa  on  mortgage  f:rcclosure; 
Ilayncs  v.  ]\reek,  14  Iowa,  .320. 
2  2  Wall.  2.11. 


3GS  JUDiaAL   AKD    1C\ECCTI0N    SAJ-ES. 

vejancc,  and  occupied  it  as  a  homestead;  but  no  such  claim 
■was  interposed  in  defense  of  the  chancery  proceeding  to  sub- 
ject it  to  sale  for  debt.  On  error  in  the  United  States  Supreme 
Court,  in  the  ejectment  suit  in  which  the  claim  of  liomestead 
exemption  was  interposed,  the  said  Supreme  Court  lay  no 
stress  upon  tlie  excess  of  value,  but  say:  "In  regard  to  the 
homestead  right  claimed  by  the  plaintiff  in  error,  there  is  no 
difficulty.  The  decree  under  which  the  sale  to  Bushnell  cx- 
]-)ressly  divested  the  defendant  of  all  right  and  interest  in  the 
premises.  It  cannot  be  collaterally  questioned."  Thus  the 
United  States  Supreme  Court  hold  that  having  jurisdiction, 
the  decree  of  sale  is  final  as  well  of  the  homestead  as  of  other 
])roperty,  if  the  objection  be  not  interposed  before  decree,  or 
the  decree  be  not,  before  sale,  reversed. 

§  1139.  A  similar  ruling  is  had  in  Iowa  in  the  case  of 
lluyncs  V.  Meck,^  where  a  mortgage  debtor  attempted  to  set 
up  the  homestead  right  as  a  defense  against  the  title  of  a  pnr- 
cliase  at  the  mortgage  sale,  made  judicially  on  decree  of  fore- 
closure. The  court  hold  that  the  mortgagors  having  had  their 
day  in  court  as  parties  to  the  foreclosure  proceeding,  and 
liaving  there  omitted  to  make  the  alleged  defense  of  fraud  in 
obtaining  the  wife's  signature  to  the  mortgage  deed,  they  could 
not  set  the  defense  up,  collaterally,  and  thus  go  behind  tlie 
mortgage  decree.  In  this  case  the  court  say,  that  if  the  defense 
be  true,  "  the  plea  is  bad,  for  the  reason  that  this  homestead 
right,  if  it  ever  existed,  was  lost  to  him  (defendant)  by  failing 
to  set  it  up  in  the  foreclosure  proceeding;  in  other  words,  he 
has  had  his  day  in  court  upon  this  alleged  homestead  right. 

§  1140.  But  in  Ohio  it  is  held  that  a  decree  uncovering 
property  from  a 'fraudulent  conveyance,  made  in  behalf  of  an 
execution  creditor,  and  subjecting  such  property  to  sale,  is  of 
no  higher  character  than  an  execution  would  be,  when  issued 
on  tlie  same  judgment,  as  against  the  operation  of  the  liome- 
stead law,  and  that  it  is  sufficient  in  point  of  time  if  the  objec- 
tion that  the  property  is  exempt  from  sale  as  an  homestead  is 
jnade  at  the  time  the  decree  is  about  to  be  executed.-     In  the 

'  14  Iowa,  220,  321. 

*  Scars  V.  Hanks,  11  Ohio  St.  298,  302. 


EXECUTION    I'llOM   SALE.  SG9 

case  cited  tlic  court  liold  that,  "  tliongli  the  final  process  on 
decrees  in  chancery  for  the  sale  of  property  ^vas  called  'an 
order  of  sale,'  it  was  nevertheless  'a  writ  of  execution  on  a 
decree'  vrithin  the  meaning  of  the  statute;"  that  as  the  j^lain- 
tiffs  therein  were  only  asserting  the  rights  of  judgment  credit- 
ors, the  ''  order  of  sale  merely  took  the  place  of  an  ordinary 
execution  upon  their  judgment;''  and  that  the  attempt  to  sell 
on  such  order  is  clearly  within  the  statute  by  which  tlie  home- 
stead is  exempt.  In  the  case  cited,'  the  court  go  further,  and 
hold  that  the  execution  of  a  conveyance  of  the  homestead  by  a 
judgment  debtor,  which  is  fraudulent  as  against  the  judgment 
creditor,  will  not  subject  the  property  so  fraudulently  conveyed 
away  to  sale  upon  execution.  Nor  will  the  uncovering  of  it 
by  a  decree  at  the  suit  of  the  judgment  creditor  setting  such 
conveyance  aside;  that  such  creditor's  claim  is  not  "  under  or 
through  the  fraudulent  conveyance,  but  adverse  to  it;"  and 
that  when  at  their  suit  the  deed  is  set  aside,  they,  as  creditors, 
"  cannot  set  up  such  void  conveyance  to  enlarge  their  rights  or 
remedies  against  the  debtor;"  that  "as  between  creditor  and 
debtor  the  deed  is  simply  void,  and  cannot,  therefore,  affect  tlic 
riirhts  of  either;"  that  "if  the  debtor  have  no  title  or  interest 
in  the  property  levied  on,  there  is  nothing  for  the  creditor  to 
sell;"  and  that  it  is  not  competent  for  the  debtor  to  deny  the 
right  of  the  debtor  and  at  the  same  time  sell  the  property  as 
his;  that  "if  he  has  an  interest  in  the  homestead  property 
which  the  creditor  can  sell,  he  has  interest  enough  to  secure 
his  homestead  from  sale;"  that  the  homestead  act  is  to  ])c 
liberally  construed  as  wise  and  humane,  and  as  "  intended  to 
protect  the  family  from  tlic  inhumanity  which  would  deprive 
its  dependent  members  of  a  home." 

'  Sears  v.  Hanks,  14  Ohio  Si.  300  301. 
24 


CnAPTEll   XXYI. 

APrLICATIOX  OF  THE  PROCEEDS. 

§  1141,  Wlictlicr  the  sale  Lc  a  judicial  one,  or  ministerial, 
as  on  ordinary  execution,  the  officer  should  return  the  proceeds 
into  court,  fur  application  or  distribution.  In  executions,  the 
command  of  the  Avrit  is  to  have  the  money  in  court.  The 
court  has  po^ver  to  control,  by  order,  the  application  or  dis- 
tribution of  the  funds  in  cases  of  dispute.  ^ 

§  1142.  A  motion  at  law  is  the  remedy  by  which  to  obtain 
distribution  or  correct  a  distribution,  and  is  to  bo  made  in  the 
same  court  whence  proceeded  the  authority  to  sell.^ 

§  1143.  The  order,  when  made,  is  a  j^rotection  to  the  officer, 
and  if  not  appealed  from  is  final. ^^  But  not  against  outsiders 
not  jiarties  to  the  proceedings.'* 

§  1144.  In  IIovKiTcVs  casc,^  it  was  held,  in  Alabama,  and 
again  by  the  Supreme  Court  of  the  United  States,  that  such 
adjudication,  or  order  of  distribution,  will  not  affect  the  rights 
of  outsiders  not  in  some  manner  parties  to  the  proceedings 
before  the  court.  On  the  contrary,  while  the  order  of  distribu- 
tion, when  made,  is  final,  in  like  manner  as  other  judgments 
or  final  findings,  until  set  aside  or  reversed,  as  between  the 
parties  before  the  court,  other  parties  in  interest,  if  any,  may 
jissert  their  rights,  by  proper  application  to  the  courts,  irre- 
spective of  such  order,  and  may  enforce  the  same  against  any 
or  all  of  them  who  may  wrongfully  obtain  such  part  of  the 

'  Robinson's  Appeal,  02  Pcnu.  St.  -^17 ;  Turner  t\  Fcndall,  1  Crancli,  117 ; 
AViley  v.  Budgman,  1  Head,  OS. 

«  Chittenden  v.  Rogers,  42  111.  flo. 

2  Noble  t.  Cope,  50  Penn.  St.  17,  20. 

■«  Matter  of  Howard,  9  Wall.  175. 

*  9  Wall.  175 ;  and  sec,  as  bearin<?  on  this.  Butcher  i\  Drew,  39  111.  40,  and 
Warren  v.  Icarian  Community,  IG  111.  114,  involving  wrongful  distribution 
l)y  the  sheriff  without  intervention  of  the  court.  The  injured  party  may 
sue  those  olAaining  tlic  advantage,  but  the  shcrilF  cannot. 

(370) 


ArPLICATION    OF    TIIK   I'ROCEEDS.  371 

proceeds  as  would  liavc  inured  to  sudi  outside  2:>arty  if  iu  court 
at  tlic  making  of  the  order  of  distribution. 

§  1145.  The  first  le\y,  if  there  be  no  priority  of  eitlicr 
Avrit,  -vvithdi-aws  the  property  from  liability  to  be  again  levied 
while  thus  in  the  hands  of  the  law,  whether  such  first  levy  bo 
on  process  from  the  state  or  from  the  United  States  courts,  and 
gives  such  first  levy  priority  of  satisfaction. 

§  114(5.  J3ut  if  there  are  two  or  more  writs,  from  the  same 
jurisdiction,  in  the  hands  of  the  same  officer  at  one  and  the 
same  time,  and  neither  emanate  from  judgments  that  are  liens, 
then,  as  before  stated,  they  are  to  l^e  paid  ratably  out  of  the 
proceeds. 

§  1147.  This  cannot  be  done,  however,  as  between  a  United 
States  jdarshal  and  a  sheriff.  In  the  absence  of  liens,  the  first 
levy  has  precedence  in  distribution  of  the  funds.  A  levy  vests 
H  special  property  in  the  officer.  Such  property  cannot  be  thus 
vested  at  the  same  time  in  both.^  If  there  is  a  lien  contra- 
vened by  the  first  levy  the  party  injured  should  apply  to  the 
court  issuing  the  writ  on  which  such  levy  is  made,  for  relief. 

§  114S.  In  Nohle  v.  Copcy'  the  court  say,  in  reference  to 
the  order  of  distribution,  that  '-'it  was  neither  excepted  to  nor 
appealed  from,  but  was  acquiesced  in  by  K'oble  and  all  other 
creditors  of  Klusmeyer.  It  concluded,  of  course,  every  issue 
that  could  have  been  properly  litigated  therein." 

§  1140.  If  there  be  several  executions,  and  one  or  more  of 
them  emanated  from  judgments  that  are  liens,  then  these  are 
first  to  be  satisfied.  Their  satisfaction  is  each  in  their  order 
according  to  seniority.^ 

§  1150.  But  the  costs  of  the  officer  are  not  to  be  postponed 
to  such  seniority.  lie  is  entitled  to  his  costs;  and  so,  also,  as 
to  the  costs  generally  of  the  writ  on  which  the  sale  is  made; 
whether  it  be  senior  or  junior,  the  costs  should  be  paid  out  of 
the  proceeds.^ 

'  IIa>Tan  v.  Lucas,  10  Pot.  400. 

'  50  JPerni.  St.  GO. 

»  Steele  v.  Ilaniiiih,  8  Blackf.  82G;  State  «.  Salyers,  17  Ind.  432;  Bagby  n. 
Reeves,  20  Ala.  427 ;  Lawson  t\  Jordan,  19  Ark.  297 ;  Thompson  t.  l^IcCord, 
27  Geo.  273;  Newton  t.  Xunnalh^  4  Geo.  356. 

*  Shellv's  Appeal,  38  IVnn.  St.'^210;  McXicl  ...  Bean.  32  Vt.  429. 


372  JUDICIAL   AXD   EXECUTION    SALES. 

§  1151,  If  the  senior  judgment  be  against  tlic  defendant 
by  a  M-rong  name,  or  in  a  foreign  language  of  his  right  name, 
then  the  writ  emanating  tliereon  loses  its  preference  in  the 
distribution;  for  the  law  requires  proceedings  in  tlic  English 
language.  ^ 

§  1152.  So,  if  the  senior  judgment  be  dormant,  the  wi-it 
issued  thereon  loses  its  priority."  And  so  between  two  writs 
where  both  have  issued  on  separate  judgments  after  the  year 
and  a  day,  the  first  levy  gains  priority. ^ 

§  1153.  In  case  of  several  writs  emanating  alike  from  judg- 
ments that  are  not  liens,  neither  will  have  preference,  but  they 
are  to  be  satisfied  ratably.*  Though  the  leading  case  to  the 
last  point  cited  was  a  case  of  mortgages,^  yet  the  same  rule 
applies  to  writs  of  execution  generally,  where  there  is  no 
seniority  of  lieii.^ 

§  1151.  In  a  question  of  priority  of  payment  between  exe- 
cutions issued  from  different  courts,  the  coui"t  from  which 
emanated  the  writ  on  which  sale  is  made  is  the  one  to  settle 
the  priority.*' 

§  1155.  Though  a  plaintiff  have  the  senior  lien  he  cannot 
apply  the  proceeds  of  sale,  if  the  debtor  be  insolvent,  to  the 
prejudice  of  a  younger  writ,  for  a  debt  for  which  he  himself  is 
security.  The  court  will  apply  the  funds  to  satisfy  the  junior 
^\Ti  t. " 

§  1150.  By  omission  to  follow  up  an  execution  from  term 
to  term  v/ith  s.n  alias,  plurics,  etc.,  exccntion  issued  on  a  judg- 

'  Nicl's  Appeal,  40  Pcnn.  St.  453. 

2  Lytic  V.  Ciii.  Manf.  Co.  4  Ham.  409. 

'  Sellers  V.  Corwin,  5  Ham.  398. 

*  Birdenbecker  v.  Lowell,  33  Barb.  (N.  Y.)  0;  Wilcox  c.  May,  19  Ohio, 
408;  Hagan  v.  Lucas,  10  Pet.  400. 

"  Wilcox  V.  Maj^  19  Ohio,  408 ;  Stagg  ex  parte,  1  N.  &  M.  405 ;  Hagan  «. 
Lucas,  10  Pet.  400;  Lawson  v.  Jordan,  19  Ark.  297;  Matthews  v.  Warne,  G 
Halst.  297. 

"  Woodruff  V.  Chapin,  3  Zabr.  500.  The  court  issuing  the  senior  execu- 
tion, (if  from  different  courts,)  has  the  sole  jurisdiction. 

■"  Kowlaud  V.  Gold-smith,  2  Grant's  Gas.  378;  and  as  bearing  upon  the 
same  subject,  see,  also,  Collins'  Appeal,  35  Penn.  St.  83;  Moss'  Appeal  35 
Pcnn.  St.  1G2;  The  flatter  of  Corner,  12  Rich.  Law  (S.  C.)  349. 


ArriJCATION   OF   THE    TEOCEEDS.  ?u  o 

mcut  rendered  in  the  interim  will  gain  precedence  if  the  prior 
jndgijient  be  not  a  lien.^ 

§  1157.  But  if  the  succession  he  kept  up  in  a  timely  man- 
ner, the  subsequent  writs  will  relate  back  to  the  test  of  their 
original  and  carry  its  lien,  as  to  the  personalt}^,  to  that  date.^ 

§  115S.  The  safer  course  is  a  venditio  exponas,  with  a  clause 
of  reference  to  the  original  writ  and  levy.^ 

§  1159.  If  there  are  several  writs,  the  one  earliest  in  test 
takes  preference  for  satisfaction  out  of  the  personalty."^ 

§  IIGO.  In  proceedings  against  the  heir  of  a  deceased  debtor 
the  oldest  judgment  and  execution  take  priority.^ 

§  llGl.  Indulgence  granted  on  the  original  writ  does  not 
destroy  its  lien  as  to  the  debtor  and  those  claiming  under  him^ 
by  purchase  from  him. 

§  1102.  In  a  conflict  for  satisfaction  between  a  mechanic's 
lien  and  a  j^rior  mortgage,  the  rule  in  Illinois  is  to  apportion 
the  proceeds,  when  insufficient  for  both,  in  such  manner 
between  them  as  to  give  the  mechanic's  lien  the  relative  portion 
of  increased  value  caused  by  the  improvements.  That  is,  such 
sum  as  bears  its  just  proportion  to  the  proceeds  of  sale  in 
reference  to  the  mortgage  debt.'' 

§  11G3.  In  Kansas  an  unrecorded  mortgage  of  land  is 
entitled  to  prior  satisfaction  ove^  an  execution  and  judgment 
junior  in  date  to  the  mortgage.  Though  judgments  are  liens, 
they  are  not-  recognized  as  such  as  against  lands  to  which 
others  have  an  efpiitable  priority  for  satisfaction  of  a  debt.^ 

§  11G4.  The  rule  in  Louisiana  is,  that  a  mortgage  creditor 
may  follow  tlie  j^roceeds  of  an  administrator's  sale  of  the 
mortgaged  lands  and  have  them  applied  on  satisfaction  of  the 

» ]\IcBroom  v.  Rives,  1  Stew.  72;  Carey  v.  Grea:g,  3  Stew.  403;  Durson  x. 
Shepherd,  4  Dev.  797 ;  Palmer  v.  Chirke,  2  Dcv.  354. 
''  Stamp  V.  Irvine,  2  Hawks,  232;   Dilkey  v.  Dickenson,  2  Hawks,  341. 
3  Yarborough  v.  The  State  Bank,  2  Dev.  23. 
■*  Green  v.  Jolmson,  2  Hawks.  300. 
"  Irwin  V.  Sloan,  2  Dev.  349;  Ricks  v.  Blount,  4  Dcv.  128. 

*  Armstrong  v.  Sledge,  2  Dev.  359. 

1  Crosby  ■!).  N.  W.  Manf.  Co.  48  111.  481;  Ilowctt  v.  Selby,  54  111.  151; 
Dingledine  v.  Ilershman,  53  111.  280. 

*  Swartz  XI.  Steers,  2  Kansas,  23G. 


374  JUDIQAL   AND   EXECUTION   SALES 

inortirao-c  debt.     lie  is  siibrocrated  to  tlie  fund  arisinir  from 

O     O  O  'Til 

tlic  sale.^ 

§  1105.  Ill  Alabama,  as  between  writs  of  equal  priority,  the 
fund  is  ec[ually  divided  between  them,  and  if  an  excess  over 
either  one,  the  excess  is  equally  distributed  between  the 
others." 

§  llG<j.  An  execution  for  the  purchase  money  of  property 
sold  on  it,  takes  precedence  over  a  mechanic's  lien  of  subse- 
quent origin  to  the  original  purchase  of  the  property  by  the 
mechanic's  lien  debtor. ^ 

§  1107.  In  Illinois,  in  case  of  several  mechanic's  liens  of 
equal  priority,  as  to  date  of  jadgmeut,  the  proceeds  of  sale  are 
equally  distributed  between  tliem.^  And  so,  in  that  state,  in 
reference  to  satisfaction  of  several  writs  of  attachment  against 
the  same  defendant,  the  proceeds  are  to  be  ap2:)lied  2wo  rata 
on  the  judgments.^  In  distribiiting  the  proceeds  of  sales  in 
admiralty  cases  brought  to  enforce  claims  for  supplies,  or 
material  furnished  the  ships  in  foreign  ports,  the  iJarty  com- 
mencing proceedings  is  entitled  to  priority  of  payment.^ 

§  1108.  An  alias  fieri  facias^  although  issued  subsequently 
to  an  original  junior  one,  bears  relation  back  to  the  date  of  the 
original  writ,  of  which  it  is  the  alias,  and  will  take  precedence, 
in  the  same  manner  as  would  the  original  one  which  it  follows; 
it  will  therefore  overreach  original  executions  of  junior  date  to 
the  original  of  the  alias  in  the  hands  of  the  officer,  in  the 
application  of  the  proceeds  of  sale.''^ 

'  Tiircand  v.  Gex,  31  La.  253. 

"^  Bizzle  V.  Hardaway,  43  Ala.  471. 

^  Sloner  «.  Neff,  50  Penn.  St.  258;  Occonncr  v.  Warner,  4  W.  &  S.  223. 
The  ruling  to  the  contrary  in  Lyon  v.  McGuffey,  4  Barr.  12G,  was  in  a  case 
where  the  vendor  by  his  own  laches,  in  not  recording  his  judgment  in 
time,  lost  his  preference.  See,  also,  Stoner  v.  Nefi",  50  Penn.  St.  258,  2G1, 
where  the  court,  referring  to  tlie  case  from  4  Barr.  say  the  vendor's  lien  was 
lost  in  that  case  "because  the  vendor  let  go  his  grasp  upon  the  purchase 
money  by  omitting  to  file  his  judgment  for  ten  days  after  parting  with 
his  title." 

*  Butcher  v.  Dew,  39  111.  40. 

*  Warner  v.  Icarian  Community,  IG  111.  114. 
«  The  Globe,  2  Blatch.  C.  C.  427. 

'  Allen  V.  Plummer,  G3  N.  C.  307. 


AITLICATIOM   OF    THE    TKOCEEDS,  375 

§  11G9.  In  admiralty  sales,  next  after  the  satisfection  of 
privileged  lien  debts,  for  that  which  enters  into  the  life  or 
safety  of  the  vessel,  if  there  be  of  the  irroceeds  of  sale  rem- 
nants remaining  in  court,  mortgage  debts  M'ill  be  entitled  to 
satisfaction  there  out  of,  as  against  the  owner  or  owners  of  the 
vessel.  In  1  Olcott,  by  B^ns,  Justice:  "As  the  mortgage 
debts  will  absorbe  the  remnants  in  court,  it  is  unnecessary  to 
consider  the  point  discussed  at  the  liearing,  whether  an 
unprivileged  debt,  owing  by  the  owner  of  a  ship,  in  the  Amer- 
ican courts,  can  be  satisfied  by  order  of  the  court,  out  of  rem- 
nants in  court,  from  the  sale  belonging  to  the  owner:  that  is, 
whether  the  court  has  an  equitable  authority  to  apply  such 
moneys  to  a  general  creditor  of  the  general  owner,  contrary  to 
his  desire  and  direction."  ° 

'  Remnants  in  Court,  1  Olcott,  382,  387. 


INDEX    OF    CONTENTS 


[THE  REFERENCES  ARE  TO  TUE   SECTIONS.] 


APPLICATION  OF  PROCEEDS,  Ch.  xxvi,  370-373. 
proceeds  to  bo  returned  into  court,  1141. 
procedure  to  obtain  distribution,  1142. 
to  correct  distribution,  1142. 
cfTcct  of  order  of  distribution,  1143. 
a  protection  to  tlie  officer,  1143. 
not  against  third  parties,  1144. 
priority  of  satisfaction,  1145. 
ratable  satisfaction,  114G,  1153. 

as  between  U.  S.  marshall  and  slieriff,  1147. 
acquiescence  in,  1148. 
judgments  Avhen  liens,  1149. 
costs  of  officer,  1150. 
defective  senior  judgment,  1151. 

dormant,  1152. 
decision  of  differences  as  to,  1154. 
■where  plaintiff  is  security,  1155. 
omission  to  follow  up  judgment,  115G. 
when  kept  up,  1157. 
safer  course,  115H. 
teste  of  writ,  1159. 
licir  of  deceased  debtor,  IIGO. 
effect  of  indulgence,  llGl. 

conflict  as  to  mechanic's  lien  and  prior  mortgage,  Illinois  rule,  11C2 
Kansas  rule  as  to  unrecorded  mortgage,  11G3. 
Louisiana  rule,  11G4. 
Alabama  rule,  1165. 
execution  for  purchase  money,  116G. 
Illinois  rule  as  to  mechanic's  liens,  11G7. 
reference  back  of  alias  writ  as  to  date,  11C8. 
application  in  admiralty,  11G9. 
AUCTIOXEER,  may  be  employed,  88. 
"DY  BIDDIXG,"9G. 


IITS  INDEX. 

CAVEAT  EMPTOR,  Ch.  xi,  1G8, 169. 

rule  applies  to  all  judicial  sales  of  real  propert}-,  459. 

supreme  court  rule,  400,  4(51. 

Iraud  destroys  application  of  rule,  4G2. 

Pennsylvania  rule  as  to,  403. 
COLLATEILVL  IMPEACHMENT,  Ch.  xii,  170-174. 

I.  When  iMPEAcnAELE  Collaterally,  170. 
for  want  of  jurisdiction,  4G3,  404. 

from  any  cause  sufficient  to  avoid  the  deed,  4Go. 
II.  When  not  Impeachable  Collatekally,  170-174. 

not  void  if  jurisdiction  attaches,  4GG. 

errors  and  irre.<?ularities  must  be  reached  by  direct  proceeding  iOG. 

cfiect  of  jurisdiction,  407. 

if  jurisdiction  affirmatively  appears  on  face  of  proceedings,  cirors 
cannot  be  examined  collaterally,  408. 

sale  of  lands  to  pay  debts  cannot  be  avoided  collaterally,  409. 

nor  legality  of  administrator's  appointment  questioned,  470,  471. 

remedy  is  by  direct  proceeding  in  chancery,  472. 

cfTcct  of  statutory  enactments,  473. 
COMMON  LAW,  liability  of  lands  for  payment  of  decedent's  debts,  245. 
CHANCERY  SALES,  nature  of,  12,  n.  G. 
CONFIRMATION,  effect  of,  2. 

DECREE  for  sale  in  partition,  what  it  should  include,  343. 
DEED,  THE.  IN  Execution  Sales,  Ch.  xviii,  201-288. 
I.  By  wnoii  to  be  Made,  201-204. 

officer  himself  or  deputy,  751. 

special  deputy  cannot,  752. 

successor  of  officer  selling,  753,  700. 

California  rule,  753. 

confirmation  of,  in  court,  753. 

deed  of  deputy,  754. 

IMissonri  rule  as  to  acknowledgment  before  clerk,  755. 

effect  of,  75G. 

form  of  deed,  757. 

officer  in  official  capacity,  758. 

stateinents  in,  759. 

foundation  of  sale  to  be  stated  in,  701. 

disposition  of  money,  702. 

defective  acknowledgment,  7C3. 

assignee  of  purchaser,  7G3. 

II.  To  whom  to  ee  Made,  264-205. 
purchaser  or  assigns,  704. 

or  legal  heirs,  or  devisees,  704. 
assignment  of  bid,  705. 

of  certificate  of  purchase,  7G5. 
recital  of,  in  deed,  760. 


IKDEX.  370 

DEED,  THE  —  Continued. 

assignment  if  defective,  7G7. 
enforcement  of  right  to  deed  ia  equity,  767. 
deed  to  tenants  in  common,  708. 
III.  WiiEK  TO  BE  Made,  2G5,  266. 

if  no  redemption  by  law,  on  payment  of  purchase  money,  7G9. 
wiicn  there  is  redemption,  770. 

deed  before  expiration  of  term  of,  771. 
in  Tennessee,  772. 
afU.'r  confirmation  Avhcn  required  by  law,  773. 
payu\cut  by  plaintiff  when  purchaser,  774. 
delivery  true  date,  77.J. 

actual  receipt  of  purcliase  money  by  officer,  770. 
IV.  AVhat  Passes  by  It,  2G6-274. 

land  and  covenants  running  Avith  it,  777. 
entire  estate  of  execution  debtor,  777. 

eflect  of  redemption  by,  777. 
growing  crops,  778. 

in  Indiana  held  to  pass,  779. 
contra,  in  Ohio,  779. 
in  Massachusetts  pass  when,  780. 
lien  of  subsequent  installments  of  judgment  debt,  781. 
Pennsylvania  rule  as  to  liens,  783,  784. 
on  mortgage  sale  carries  mortgagor's  equity  of  redemption  v/iicn 

78j,  789,  790. 
relates  back  to  date  of  judgment  when,  780. 
when  purchaser  is  charged  with  notice,  787. 
sale  on  senior  judgment  and  junior  levy,  788. 
purchaser's  remedy  when  debtor  had  no  title,  791. 
imperfect  description  of,  792. 
as  to  fixtures  on. land  with  right  of  removal,  790. 
sale  for  balance  of  purcliase  money,  794. 
illustration,  795. 

estoppel  of  lieu  creditor  by  sale,  79G. 

sale  of  equitable  right  of  vendee  by  vendor  holding  legal  title,  791 
Iowa  rule  as  to  enforcement  of  vendor's  rights,  798. 
sale  subject  to  vendor's  lien,  799. 
sale  of  interest  of  one  tenant  of  entirety,  800,  801. 
of  easement,  803. 

V.  llTsciTAi-s  OF  Deed,  275,  270. 
execution  need  not  be  recited,  803. 

must  be  referred  to,  803. 
clFect  of  in  evidence,  804,  80G,  807. 
as  to  proof  of  notice,  805. 
misrecital  of  name  of  party  to  judgment,  808. 

VI.  Its  Rel.^.tion,  270,  277. 
if  judgment  is  a  lieu,  809. 


3S0  INDEX. 

DEED,  THE  — Continued. 
if  not  a  lion,  810. 

Illinois  rule  as  to  reccrclinj^  certificate  of  levy,  811. 
relation  to,  811. 
YII.  Priority,  277-283. 

prior  lien  gives  prior  claim,  812,  813. 

of  the  essence  of  the  lien,  814. 
ivlica  plaintiff  in  execution  is  purchaser,  815. 
Iowa  statute  as  to  unrecorded  equities,  81G. 
general  rule  as  to,  817. 
general  cfTect  of  lien,  818. 
l>Hrchase  after  mortgage,  819. 
effect  of  record,  820. 
Ohio  rule  as  to,  821,  822,  823. 
not  bona  fide  unless  money  is  paid,  824. 
}>i-ior  equity  over  assignment,  825. 
writ  first  levied  when  it  confess,  826. 
sale  subject  to  mortgage,  827. 
cU'ect  of  record  as  to  satisfaction,  828. 
irotcmporaneous  liens,  829. 

how  modified,  830. 
Pennsylvania  rule  as  to  registration,  831,  832. 
yill.  Registration,  283,  284. 

sheriff's  deeds  within  provisions  of  rcgislratlC'n  aclL\  ^'^SS. 
priority  of  recording,  834. 
imperfect  recording,  834. 
Io^ya  law  as  to,  885. 

decisions  under,  835. 
IX.  Collateral  Impeachment,  284-287. 
\vhen  deed  is  not  subject  to,  83G. 
Iowa  law  as  to,  837. 

construction  of,  8;37. 
New  Jersey  rule  as  to,  838. 
Mississippi  rule,  839. 
South  Carolina  rule,  840. 
evidence  of  ofiicer  making  deed,  841. 
want  of  seal,  842. 
X.  Estoppel,  287,  288. 

defendant  in  execution  estopped  by  sheriff's  deed,  843. 

evasion  of  disability,  814. 

illustrative  case,  845. 

application  of  rule,  840. 

void  execution  does  not  Avork  estoppel,  847. 

of  debtor  as  against  purchaser,  848. 

by  statute  of  frauds,  849. 


INDKX.  3S 1 

DEED,  THE,  IN  JuDUiAi.  bAi.Ks,  Cli.  ix,  lll-l.-.l. 
I.  By  AV^iio.m  to  ue  IMadk,  141-145. 
sale  not  complete  till  tlocd  is  delivered,  3."*7. 
party  selling  makes  the  deed,  o'u. 
sale  jierfected  by  conlirmation,  and  delivery  of  deed,  ;JG7. 

in  some  cases  by  approval  of  deed,  "."iT 

Illinois  doctrine  contra.,  ooS. 
eflect  of  an  advanced  bid,  oot). 
confirmation,  as  to  necessity  of,  ;300. 
sale  by  successor,  361. 
cflect  of  death  of  licensee,  ;l(Il. 
license  to  sell,  official  not  personal,  0G2. 
deed  of  administrator  cannot  be  executed  by  a,;^ent,  oG3. 
procedure  where  administrator  is  b(!yond  jurisdiction,  u04. 
deed  should  be  by  administrator  as  sucli,  tliough  sale  is   under 

special  law,  305. 
administrator  pro  tan.  cannot  make  deed  v.ithout  special  aulhnr- 

ity,  3GG.  _ 

so  as  to  administrator  dc  horn's  noti,  in  Mississippi,  3<>T. 
deed  of  unmarried  woman  as  guardian,  3C8. 
II.  To  Whom  to  be  Made,  145. 
ordinarily  to  purchaser,  3G'J. 

unless  otherwise  ordered  by  court  at  his  rcquesl,  309. 
effect  of  deed  to  assignee  of  purchaser,  3G!). 
deed  to  assignee  generally  valid,  370. 

III.  When  to  be  Made,  146,  147. 

as  soon  as  sale  is  confirmed  and  purchase  money  paid,  371. 
if  on  credit,  right  to  deed  depends  on  circumstances,  371. 
as  to  time  of  delivery,  dependent  on  order  of  court,  372. 
statutory  provisions  as  to,  374. 

IV.  Its  Recitals  and  Desciiiptioxs,  147,  148. 
mere  misrecitals  will  not  invalidate,  when,  375. 
nor  misnomer,  376. 

Iowa  rule  as  to  term  administrator,  377. 
recital  of  order  or  decree  in  deed,  378. 
safest  to  do  so,  378. 
effect  of  confirmation,  378. 
V.  What  Passes  by  it,  148-153. 

only  such  property  as  is  authorized  to  be  sold  by  the  decree,  370. 
sale  of  undivided  interest  by  guardian  carries  onh'  interoi^t  <  f 

ward,  380. 
deed  under  mortgage  foreclosure  carries  entire  interest  of  iii'-ri- 

gagor  and  mortgagee,  381. 
but  does  not  divest  subsisting  equities,  381. 
carries  title  only  as  against  parties  to  the  suit,  383. 
widow's  dower  not  conveyed  by  guardian's  sale  ordinarily,  383. 
olhcrwi.?/j  in  Missouri,  383. 


382  ixDEX. 

DEED,  T:ilE  —  Conti/mcd. 

effect  of  her  wnrrauty  -vvlicn  deeding  as  guardian,  38:3. 

Xew  Hampshire    rule  as  to    deed    of   conservator    of   insolvent 

estate,  384. 
Pennsylvania    rule   that   interest   of  parties  to   suit  only  is  con- 
veyed, 385. 
mortgage  by  co-partner,  pending  proceedings  iu  partition,  overruled 

by  deed  to  purchaser  at  partition  sale,  38G. 
fjroicing  crops  do  not  pass  where  land  is  valued  before  sale,  387. 
so  as  to  emblements,  388. 
growing  crops  regarded  as  personalty,  CSS. 

but  occupier  of  premises  cannot  put  in  crop  after  sale,  339,  390,  301. 
authority  of  administrator  to  make  deed  must  be  shown,  393. 
if  appointment  of  administrator  is  void  his  deed  is  void,  393. 
DOWER  LANDS,  sale  on  execution  of,  540-548. 
EQUITABLE  INTERESTS,  sale  of  ou  execution,  551-555. 
ESTOPPEL,  Ch.  xi,  1G4-1G7. 

nature,  origin  of,  and  title  conferred  by,  442. 

sale  of   property  in  owner's  presence,  and  without  his  dissent, 

works,  443,  45G. 
binds  parties  and  privies  in  blood  and  estate,  444. 
estoppel  of  anccster  estops  heir,  445. 
run  with  the  laud,  446. 
illustrative  case,  44G,  447. 
by  recitals  in  deed,  448. 

by  warranty  of  doweress  in  her  deed  as  guardian,  449. 
by  ob'ention  of  injunction  as  to  proceedings,  450. 
by  receipt  of  purchase  money,  451. 
mortgagor's  title,  452. 
guardian  cannot  work  as  to  his  ward,  453. 
l»urchaser  at  void  judicial  sale  is  not  estopped,  454. 
receipt  by  ward  of  purchase  money  after  coming  of  age,  455. 
favored  when  equity  is  promoted,  45G. 
EXECUTION  SALES,  nature  of. 

{See  Nature  of  Execution  Sales,  4G-G8.) 
EXECUTION  SALES  OF  CORPORATE  FRANCHISES,  PROPERTY 
AND  STOCKS,  Ch.  xxiv,  344-352. 
T.  At  Common  Law,  344-34G. 
must  be  under  statutory  change  of,  lOGS. 
levy  of  appurtenances  essential  to  franchise,  10G9. 
how  sale  to  be  made,  if  ever,  1070. 

New  Hampshire  rule  as  to  engines  and  cars  not  in  use,  1070. 
Pennsylvania  rule  as  to  levy  on  right  of  way,  1071. 
California  rule,  1072. 
II.  By  Statute,  347-351. 

must  be  in  strict  conformity  with,  1073. 


INDEX.  OS:' 

SALE  OF  CORPORATE  FRANCHISES,  'E.-vc.  —  Conliaued. 
illustration,  1073. 
to  be  shown  affirmatively,  1074. 
variance  as  to  notice,  1075. 
imperfect  levy,  107G. 
stocks  and  shares  a  personal  interest,  1077. 

not  liable  to  le\'y  and  sale  at  common  law,  107;). 
eflect  of  execution  sale  as  to  transfer.?,  1080. 
rii^ht  of  state  or  municipalit}',  1081. 

liability  to  levy,  1083,  1083. 
double  levy,  application  of  proceed  of  sale  under,  1081. 
requirements  in  act  of  incorporation,  1085. 
sale  under  fraudulent  procurement,  108G. 
hypothecated  stocks,  1087. 
lien  of  company  by  by-law,  1088. 
mortgaged  stocks,  1089. 
Penns^dvania  procedure,  1090. 
description,  what  is  a  good,  1091 
Alabama  rule,  1092. 
III.  Effect  of  Sale,  351,  353. 

under  Massachusetts  statute,  1093,  1094. 
sherifi''s  return  as  to,  1095. 
irregularity  of  sale,  109G. 
EXEMPTION  FROM  SALE,  Ch.  xxv,  353-3G9. 
I.  The  Policy  (»f  the  Law,  353. 
humane,  1097. 
foundation  of,  1078. 
lex  loci  governs,  1099. 
II.  Its  Legal  Effect,  854-363. 

law  of  date  of  contract  governs,  1100. 
Iowa  law  as  to  homestead  exemption,  1101. 
repeal  of  law,  with  saving  clause,  1103. 
conformity  to,  1103. 
homestead,  what  constitutes,  1104. 

liability  of  to  levy  in  Minnesota,  1105,  HOG. 

construction  of,  1107. 

Iowa  rule,  1108,  lllG. 

construction  of,  1109. 

waiver  of,  1110. 

abandonment  of,  1111. 

exhaustion  of  other  property,  1113 

conveyance  of,  1113,  1114. 

use  of,  1115. 

Ohio  rule,  1117 
implements  exempt,  1118. 


354  ■  INDEX. 

EXEMl^IOX  FROM  SALE— Confinvnl 

(.'xcuiption  as  to  process  of  U.  B.  courts,  1111/. 

rule  as  to,  1120-1124. 
riglit  of  selection,  in  Missouri,  112.'). 

{)roperty  and  wages  liable  when  debtor  is  about  to  remove,  112G. 
1 II.  Waiver,  3G2-3G9. 

diflerent  constructions  as  to,  embodied  in  contract,  1120. 

Iowa  rule  as  to,  1127-1131. 

Pennsylvania  rule,  1128. 

Indiana  rule,  1132,  1133. 

correct  doctrine,  1134-113G. 

Illinois  rule,  1137. 

construction  of,  1138,  1130. 
Ohio  rule,  1140. 

GL'ARDIAN'S  SALES  AND  SALES  IX  PROCEEDINGS  FOR  PAR 
TITION,  Ch.  vii,  124-133. 
I.  Guardian's  Sales,  124-130. 

in  England  sovereign  is  guardian  of  all  infants,  313. 

and  this  authority  an  attribute  of  judiciary,  313. 

and  ti'ansmitted  to  courts,  814. 

and  by  courts  delegated,  315. 

origin  of  American  authority  in  courts,  310. 

authority  regulated  by  statute,  317. 

subjects  to  rights  in  equity,  317. 

how  to  be  exercised,  317. 
general  chancery  jurisdiction  to  decree  sale  in  some  States,  318. 
other  rule,  318,  319. 

probate  courts  have  only  statutory  power,  320. 
if  jurisdiction    attaches  conformity  to  statutory  power  will    be 

inferred,  321. 
nature  of  proceedings,  whether  udvcrsaiy  or  vi  rem,  322 
proceedings  i)i  rem,  323. 
cases  illustrative,  324. 
license  to  sell  may  be  in  alternative,  325. 
guardian's  deed,  what  title  conveyed,  320. 

warranty,  effect  of,  326. 
requisites  to  sustain  guardian's  sale,  327. 

.sale  of  entire  interest  of  several  on  application  of  one,  effect  of,  323. 
guardian  in  socage,  power  of,  329. 

sale  made  after  termination  of  such  guardinnshij)  void,  329. 
affirmance  of  sale  by  ward,  330. 
guardian  cannot  purchase  at  liis  own  sale,  331. 
report  to  next  term  of  court,  332. 

confirmation  not  necessary  unless  required  by  statute,  332. 
failure  of  guardian  to  report,  332. 

amount  to  be  raised  under  order  of  sale  includes  costs,  333. 
where  amount  raised  is  in  excess  of  decree,  334. 


INDEX.  SSO 

GUARDIAN'S  SALES,  Etc.  — Continued. 

sale  in  different  order  from  decree,  335. 

clVect  of  confirmation  of,  335. 
II.  Sales  in  Proceedings  for  P.vrtitiox,  130-133. 

tlioy  are  judicial  sales,  33G. 

must  be  reported  for  confirmation,  33G. 

until  confirmed  of  no  eflect,  33G. 

may  be  a  re-sale,  when,  337. 

liability  of  first  purchaser  for  loss  on  re-sale,  837. 

Iiartition  may  be  part  in  kind  and  part  by  sale,  338. 

title  of  purchaser,  339. 

rights  of  judgment  creditor  of  tenant  in  common,  340. 

lien  of  mortgage,  in  Illinois,  340. 

Illinois  procedure  in  sales,  341,  343. 

decree  for  sale  in  partition,  what  it  should  include,  343. 

procedure  in  obtaining,  343. 

Ohio  procedure  in  sales,  314,  345. 
HEIRS,  infancy  of,  293. 

HOMESTEAD,  sale  on  execution  of,  55G-559. 
INTEREST,  foreclosure  for  non-payment  of,  209. 
INTEREST  IN  LANDS,  EXECUTION  SALES  OF,  Ch.  xv,  195-207. 
I.  IIow^  Liable  to  S.\le,  195-199. 

lands  not  liable  to  sale  on  execution  at  common  law,  531. 

mode  of  procedure,  531. 

statute  of  George  II,  532. 

construction  of,  532. 

local  statutes  of  same  effect,  532. 

liability  to  sale  only  when  no  personal  property  is  found,  533. 

appraisement  of  rents  and  nrofits,  534. 

statutory  rules  generally,  535. 

general  rule,  53G. 

pre-emption  rights,  537. 

entry  and  survey  rights,  537. 

equity  of  redemption,  538. 

statutory  right  to  redeem  from  execution  sale,  538. 

Louisiana  procedure  by  execution  creditor,  539. 

supreme  court  dectrine  as  to,  540. 

claim  not  based  on  right  or  possession,  541. 

lauds  held  in  trust,  542. 

hold  by  purchaser  before  issuance  of  patent,  543,  544. 
issuance  of  patent,  543,  545. 
title  under  sheriff's  sale  of,  544. 

all  parts  of  conveyance  to  be  taken  together,  545. 
II.  Dower  L.\nds,  199. 

right  of  dower  before  assignment  or  possession  may  not  be  sold,  540 

otherwise  if  in  possession,  547. 
25 


.'ISG  INDEX 

IXTEREST  IX  LAND,  'Ktc  — Continued. 

so  as  to  possessing  interest  of  husband  in  dower  lands  of  wife,  518. 
HI.  UNDIVIDED  Interests,  199,200. 

Interest  of  husband  or  wife  as  tenant  of  entirety,  .j-lO. 

nature  of,  549. 

ellect  of  statutory  enactments,  550. 
I  v.  Equitable  Interests,  300,201. 

may  not  be  sold  without  possossion,  551. 

unless  by  statute,  551.  ^ 

"possession  of  land,"  meaning  of,  552.  ■ 

Indiana  rule  as  to  fraudulent  conveyance,  55o.  ■ 

lands  in  trust,  554. 

Iowa  rule  as  to  equitable  interests  in  really,  555. 
V.  The  Homestead,  201-205. 

generally  exempt,  55G. 

sale  of,  55G,  557. 

Iowa,  Kansas,  and  Illinois  decisions,  557. 

after  abandonment  of  first  levy,  558. 
VI.  In  aviiat  order  to  be  Sold,  205-207. 

part  remaining  after  sale  by  debtor  of  portion,  vrith  lieu  attached, 
if  sufncient,  559. 

property  of  debtor  to  be  exhausted  before  'proceeding  against  part 
as  sold  by  him,  559. 

as  to  resort  to  part  last  disposed  of,  500. 

contrary  rule,  5G1. 

sale  under  junior  judgment,  502. 

rule  as  to  satisfaction  of  judgment  in  property  of  debtor,  503. 
JIDICLVL  SALE,  Ch.  iv,  44-69. 
I.  By  whom  to  be  Made,  44,  45. 

by  person  designated  in  order  or  decree,  »8. 

under  his  direction,  88. 

auctioneer  may  be  employed,  88. 

authority  for  this,  89. 

always  under  control  of  court,  90. 
II.  How  TO  BE  Made,  45-50. 

by  public  auction  to  highest  real  bidder,  91. 

unless  otlierwisc  authorized,  91. 

for  cash,  91. 

exception,  91. 

always  for  money,  91. 

if  otherwise,  not  sale  but  barter,  'Jl. 

definition  of  sale,  92. 

usual  mode  of  selling,  92,  93. 

joint  bidding  allowed,  if  in  good  faith,  94. 

citation  of  authority,  94. 

combinations  illegal,  95. 

minimum  may  be  fixed,  95. 


ixDKX.  387 

JUDICIAL  SXLE  —  Coniitiued. 

but  must  be  made  public,  95. 

bj'-bidding  fraudulent,  90. 

appointed  bidding,  by  order  of  court,  07. 

valuation  laws  do  not  apply,  !>8. 

or  redemption  laws,  98. 

unless  so  declared  by  statute,  98. 

must  be  sold  in  i>arcels,  99. 

and  in  such  order  as  desired  by  debtor,  100. 

unless  good  reason  to  contrary,  100,  101. 

ill  such  order  as  Avill  produce  largest  amount,  101. 

court  may  instruct  as  to  order,  if  parties  cannot  agree,  102. 

«Iebtor's  rights  protected  hy  court,  103. 

court  may  prescribe  mode  and  terms,  100. 

within  statutory  provisions,  103. 

Avherc  not  prescribed,  duty  of  person  selling,  101. 

subject  to  scrutiny  of  court,  104. 

])resumption  of  fairness,  10."). 

when  parcels  may  be  sold  together,  100. 
HI.  Wno  MAY  NOT  Buy,  50,  51. 

person  selling  may  not,  107. 

nor  any  person  employed  in,  107. 

unless  by  leave  of  court,  107. 

til  is  rule  very  broad,  107. 

extends  to  all  agents,  107. 

the  rule  as  expressed  by  courts,  108,  109. 

one  derelict  may  not,  110. 

principle  illustrated,  110. 
IV.  Notice  op  Sale— Adjournment,  52-54. 

notice  must  follow  direction.  111. 

presumption  as  to  conformity,  112. 

posting  of  notice,  113. 

adjovu'ument  after  notice,  114. 

where  no  direction  is  given,  115. 

adjournment,  officer's  discretion  as  to,  IIG. 

discussion  of  cases  as  to,  117,  120. 

notice  should  be  definite,  121. 

effect  of  indefiniteness,  121. 
\^.  Confirmation,  55-59. 

definition  of,  122. 

effect  of,  122,  123,  124,  132. 

no  rights,  until,  124. 

discretion  of  court  as  to,  124,  12G,  127,  12S. 

lapse  of  time,  125. 

relates  back,  127. 

cause  for  refusing,  129. 

California  rule,  130. 


3S8  INDEX. 

JUDICIAL  SALE  — Continued. 

cause  for  refusing,  Kansas  rule,  133. 
code  practice,  133. 
YI.  When  the  Title  Passes,  59. 

by  payment  of  purchase  money,  134. 

and  execution  and  delivery  of  deed,  134. 

by  lapse  of  time,  135. 
\'II.  When  not  Aided  in  Equity  59,  CO. 

"niien  not  conformed  to  statute,  13G. 

if  void  at  law,  137. 

when  a  remedy  in  personam  exists,  137. 
VIII.  Not  Affected  by  Reversal,  op  the  Deckee,  60-62. 

if  reversal  is  for  irregularity  in  obtaining,  138. 

this  rule  at  length,  139. 

Ohio  rule,  140,  141. 
IX.  How  Affected  by  Statute  op  Limitation,  62,  63. 

special  statute  does  not  apply,  143,  143. 

if  sale  is  valid,  144. 

sale  in  fact  and  delivery'  of  deed,  145. 
X.  By  Statute  op  Frauds,  63,  64. 

general  rule  that  sales  after  confirmation  arc  not  within,  146. 

first  application  of  it,  146. 

Judge  Story's  rule,  146. 

New  York  rule,  147. 

Missouri  rule,  147. 

Alabama  rule,  147. 

Pennsylvania  rule,  147. 

California  rule,  147. 

Illinois  rule,  148. 
XL  When  Valid  by  Lapse  op  Time,  64,  65. 

founded  in  sound  policy,  149. 

presumption  of  validity  by,  150. 

but  not  as  against  the  record,  150. 

affirmative  showings  of,  to  be  received  as  verity,  150. 

presumptions  will  apply  to  questions  of  jurisdiction  if  record  5s 
silent  as  to,  151. 
XII.  How  Enforced  ao.^inst  the  Purchaser,  66,  67. 

purchaser  by  purchase  becomes  party  to  proceedings,  152. 

and  may  be  compelled  by  process  to  perform  his  agreement  153. 

notwithstanding  right  to  re-sell  on  nonperformance,  154. 

no  compulsion,  if  title  defective,  155. 

distinction  as  to  caveat  emptor,  155. 

reference  may  be  had  as  to  title,  156. 
XIII.  IIow  Enpxjrced  in  Favor  op  Purchaser,  67, 68. 

order  for  possession  in  decree,  157. 

if  not,  court  will  make  such,  after  sale,  157 

mode  of  proceeding,  158. 


INDEX.  3&0 

JUDICIAL  SXLY.  —  Contmue(l. 

tlicse  methods  not  within  power  of  probate  court  selling  under 

statute,  159. 
procedure  in  probate,  on  non-compliance  of  purchaser,  100. 
XIV.  Ratification  by  Party  Affected,  ou  by  Lapse  op  Time,  68,  C9. 
sale  not  legally  binding  may  become  such  by  ratificatioa  of  party 

affected,  161. 
as,  ratification  by  ward  of  guardian's  sale,  1G2. 
and,  acceptance  by  heirs  of  shares  of  purcliase  money,  163. 
so  of  unauthorized  sale  where  heirs  at  law  received  proceeds,  16'iJ. 
JUDICIAL   SALES    OF   CORPORATE   FRANCHISES,  PROPERTY 

AND  STOCKS,  Ch.  xiv,  187-194. 
effect  of  sale  of  corporate  rigiits,  513. 
franchise  does  not  pass,  513. 
definition  of,  513. 
as  to  forced  sale  of,  514. 
Ohio  rule  as  to,  515. 
Pennsylvania  rule  as  to,  510. 
accountability  for  a  value  of,  517. 
easements  not  paid  for  do  not  pass,  518. 
reason  of  this  rule,  518. 
procedure  in  equity,  in  Pennsylvania,  519. 
power  to  sell  franchises,  520. 
common  law  right  to  mortgage  and  sell,  521. 
statutory  right,  how  to  be  exercised,  521. 
Wisconsin  rule  as  to  fixtures,  522. 

lien  of  judgments  in,  523. 
sale  under,  in,  523. 
fraudulent  sale,  524. 

enforcement  of  judgments  in  equity,  525. 
ground  of  jurisdiction,  526. 
illustrative  cases,  527,  528. 
procedure  in  equity  generally,  529,  530. 
JUDICIAL  SALES  OF  PERSONAL  PROPERTY,  Ch.  xiii,  179-180. 
I.  In  Admiralty,  179-183. 
they  are  sales  in  rem,  494. 
in  admiralty  cases  in  rem  jurisdiction  only  in  courts  of  United 

States,  495. 
nature  of  proceedings  in  rem,  495. 
not  within  statute  of  frauds,  496. 
equity  principl"s  govern,  497. 
effect  of  proceedings  t>i  rem,  498. 
validity  and  effect  of  sale,  499,  500. 
form  of,  of  no  importance,  501. 
nature  of  proceedings  in,  501. 
II.  At  Law,  183-180. 

proceedings  in  rem,  nature  of,  502,  506 


C90  INDKX. 

JUDICIAL  SALES  OP  TEIISONAL  PHOFETY  —  Continued. 
procedure  in,  503. 
jurisdiction  as  to,  503. 
relative  to  admiral tj"-  suits,  504. 
ciTect  of,  505. 
title  of  purchaser,  507. 

Ohio  rule,  507,  509. 
Missouri  rule,  508,  510. 
c.vtent  of,  511. 

expenses  to  be  included,  512. 
JUDICIAL  SALES  TO  ENFORCE  LIENS  ON  REAL  PROPERTY, 
Ch.  \,  70-90. 

T.  MlTNICIPAL  LlE>-S  FOK   STREET   IMPROVEMENTS,   70-73. 

sales  in  cqitity  to  enforce   liens  arising  under  ordinances,  etc., 

regarded  as  judicial,  1G4,  1G5. 
"  action,"  means  in  ordinary  sense,  1G6. 

310  power  of  modification,  only  confirmation  or  rejection,  1G7 
tills  rule  illuslrated,  1G8. 
conditions  must  be  observed,  1C9. 
IL  ^Iechanics'  Lie^'s,  73-78. 

of  modern  date  and  creatures  of  statute,  '170. 

enforcement  of,  calls  for  exercise  of  equity  powers  of  court,  170. 

and  procedure  is  in  equity,  170,  171,  173. 

relation  of  sales,  as  to  time,  173. 

]iractice  in  Indiana,  174. 

when  amount  of  decree  is  not  realized  at  sale,  175. 
requisites  for  validity  of  sale,  176,  177. 
l)rior  mortgage  lien,  Illinois  rule,  178. 
Nevada  rule,  179. 
these  rules  discussed,  180. 
Iowa  rule,  181,  182. 
how  enforced  in  Iowa,  183,  181. 
III.  Mortgage  Liexs,  78-87. 

origin  and  nature  of  foreclosure  sales,  183. 

Pennsylvania  rule,  18G. 

power  of  courts  of  equity  in,  187. 

ordinarily  made  for  cash,  188. 

to  be  made  by  master  or  commissioner,  189. 

when  no  statutory  regulation,  189. 

liow  to  be  made,  189. 

completion  of  sale  by  purchaser,  190. 

I)03session  by  purchaser,  how  obtained,  190. 

hoAv  aided  by  court,  191. 

proper  procedure,  193. 
application  of  proceeds  as  to  prior  liens,  193. 
as  to  conflicting  claims,  194. 
as  to  conflicting  claimants  of  surplus  proceeds,  210. 


INDEX.  301 

.]  I'DICIAL  S\LE^  — Continued. 

lands  sold  by  mortgagor  after  mortgage,  lOo. 

as  to  sale  of  in  foreclosure,  195,  19G. 

us  to  subsequent  incumbrances,  196. 

contrary  doctrine,  197. 

restrictions  of  law  as  to,  198. 

litlo  -which  passes  by  sale  under  mortgage  decree,  199. 

lixlse  representations  as  to  incumbrances,  200. 

subrogation  of  purchaser,  201. 

I)riority,  Illinois  rule  as  to,  202. 
value  of,  203. 
in  Kansas,  204. 
in  Ohio,  205. 

IMissouri  rule  as  to  conveyance  subject  to  incumbrance,  20G. 

as  to  multiplicity  of  suits,  207. 

]iraclice  in  New  York,  208. 

foreclosure  for  interest  only,  209. 
IV.  Vendor's  Li  ex,  87-90. 

arises  by  implication  of  law,  211. 

good  against  whom,  211. 

enforcable  in  equity  only,  213. 

and  sale  under,  judicial,  212. 

overrides  mechanics'  lien,  21o,  214. 

execution  purchaser,  215,  210. 

Iowa  rule,  217,  219,  220. 

security  taken  for  deferred  payment,  rights  of  assignee  of,  218. 

vendor's  remedies,  nature  and  enforcement  of,  221. 
JUIUSDICTION  OF  THE  COURT  ORDERINCr  THE  SALE,  Ch.  iii, 
33-43. 
I.  The  JuiiisDiCTiON  is  Local,  33. 

the  le.v  loci  rei  sitm  governs,  G9. 
11.  It  is  Power  to  Hear  and  Determine  a  Cause,  33-35. 

jurisdiction,  power  to  hear  and  determine,  70. 

if  this  does  not  exist,  no  jurisdiction,  70,  and  n.  2. 

must  be  brought  into  effect,  70. 

manner  of  conferring,  71. 

petition  or  plaint  must  be  such  as  is  sustainable  on  demurrer,  71 

what  will  be  inferred  if  sustainable,  72. 

record  receivable  as  verity,  72. 
III.  There  must  be  Actual  Jurisdictiox,  3G-42. 

statute  must  be  conformed  to,  73. 

there  must  be  conformity  tlirougliout,  74. 

caveat  emptor  applies,  75. 

remedy  as  to  error,  75. 

jurisdiction  of  the  court,  7(!. 

proceedings  to  invoke  juiisdiction  generally,  77. 

in  personam,  78. 


392  INDEX. 

JURISDICTION  OF  THE  COURT —  Continued. 

ill  rem,  79,  80. 

cases  discussed,  81,  82,  83,  84,  85. 
IV.  Title  Passes  by  Operation  of  Law,  42,  43. 
analogy,  86. 

rights  of  government,  87. 
LEVY  OF  EXECUTION,  Cli.  xvi,  210-213. 

cannot  be  made  after  return  day  of  writ,  57G. 
must  describe  land  sufficiently,  577. 
void  for  uncertainty,  577. 

where  proceeding  is  under  appraisement  law,  577. 
correct  description  in  sheriti"'s  deed,  578. 
priority  as  to  levies,  579. 
procedure  after  levy,  580,  581 
surety,  levy  against,  582. 
property  in  hands  of  receiver,  583. 
method  of  levy  in  Minnesota,  584,  585. 
excessive  levy,  586,  587. 
instance  of,  587. 

LEVY,  THE,  In  Execution  Sales  op  Personal  Property,  Ch.  xxii, 

328-832. 
I.  When  to  be  Made,  32-84. 
any  time  within  life  of  execution  unless  time  is  limited  by  law,  997. 
at  reasonable  hour,  and  not  to  unnecessary  annoyance  of  debtor,  998. 
"returnable  to  next  term,"  meaning  of,  999. 
trespass    lies  against   officer  for    illegal    levy  and    sale,  or  levy 

alone,  1000. 
evidence  as  to  application  of  proceeds  of  such  sale  in  diminution 

of  damages,  1001. 
II.  How  TO  BE  Made,  329,  330. 

"paper  levy"  void ;  officer  must  have  actual  control,  1002. 
may  be  in  care  of  third  party,  but  is  at  risk  of  officer,  1003. 
endorsement  on  writ,  1004. 
reasonable  time  for  removal,  1004. 
actual  seizure  necessary,  1005. 
second  lev}-,  when  allowed,  1006. 
levy  of  certain  definite  portion,  1007. 
procedure  where  actual  possession  is  impossible,  1008. 
order  as  to  levying  several  writs,  1009. 
postponement  by  order,  1010. 
if  two  are  received  at  once,  1010. 
disposition  of  proceeds,  1010. 
in.  Its  Effect,  331. 

wlien  it  satisfies  judgment,  1011. 

vests  special  projicrty  in  officer,  1011-1013. 

when  levy  is  unavailing,  1012. 


INDEX.  31)3 

LEVY,  THE  — Continued. 

expense  of  regaining  property  illegally  taken  from  officer  will  be 
repaid  him,  1014. 
IV.  WuEN  Void  or  Discharged,  331. 
if  made  after  return  day,  1015. 
or  after  death  of  debtor,  1015. 
or  of  property  not  subject  to  the  writ,  1015. 
lost  by  unreasonable  delay  to  sell,  lOlG. 
when  so  discharged  its  seniority  cannot  be  reinstated,  lOlG. 
V.  When  it  will  be  Set  Aside,  332. 

only  by  sale,  by  order  of  court,  or  by  agreement,  1017. 
not  by  release  made  through  mistake,  1018. 
will  be  set  aside  if  personal  property  is  levied,  when,  1019. 
if  levied  on  property  in  hands  of  receiver,  1020. 
VI.  Constructive  Le\'y,  333. 

when  and  how  to  be  made,  and  procedure  under,  1021. 
LOSS  BY  FIRE,  between  purchase  and  confirmation,  falls  on  vendor,  13. 
MINIMUM  price,  95. 

MORTGAGEE  AS  PURCHASER,  redemption  from,  937. 
NATURE  OF  JUDICIAL  AND  OF  EXECUTION  SALES,  3-33. 
NATURE  OF  EXECUTION  SALES,  Ch.  ii,  35-33. 
I.  They  are  Ministerial  Sales,  25-27. 
sale  made  by  sheriff  or  marshal  on  execution,  made  as  ministerial 

ofBcer  of  law,  not  as  organ  of  court,  4G. 
illustration  of  this  principle,  47. 
exceptions,  48,  49. 

court,  generally,  does  not  order  execution  sale,  50. 
exceptions,  50. 

effect  in  exceptional  cases,  50. 
power  invoked  by  writ,  51. 
act  of  selling,  ministerial,  51. 

officer  selling,  agent  of  execution  defendant,  not  of  court,  51. 
title  which  passes,  53. 

exceptions,  where  statute  requires  confirmation,  52. 
effect  of  such  confirmation,  53. 
II.  Officer    Selling    is,    in    Law,   Attorney   of   Execution 
Debtor,  28. 
officer's  convc3'ance  carries  all  title  of  execution  debtor,  54. 
acts  as  attorne}^,  appointed  by  court,  54. 
purchase  money  applied  to  use  of  defendant  in  discharge  of  his 

debt,  55. 
as  between  debtor  and  purchaser  law  raises  a  contract  of  convey- 
ance without  warranty,  55. 
this  principle  illustrated,  5G,  57. 
cases  cited,  5G,  57. 


394:  IKDEX. 

NATURE  OF  EXECUTION  SXl.ES  — Continued. 
ni.  TuERE    IS    NO    Implied    AVaiiu.vxty.     The    Rule    op    Caveat 
Emptor  Applies,  29,  30. 
oflicer  sells  only  interest  of  judjumcnt  debtor  in  premise^;,  57. 
not  bound  to  convey  with  warr;inty,  57. 
and  law  does  not  imply  one,  57. 
title  acquired  by  purchaser,  58. 
effect  of  warranty,  58. 

purchaser  cannot  avoid,  by  sliowing  no  title  in  judgn^ient  debtor,  59. 
maxim  caveat  emptor  applies,  59. 
effect  of  sale  on  credit,  GO. 

ly.  TlIEY  AIIE   WITHIN  TUE   STATUTE   OF   Fn.\.rDS,  30. 

in  the  absence  of  any  memorandum.  Gl. 
reasons  of  the  rule,  G2. 
V.  Effect  of  Reversal  op  Judgment,  30-32. 

sales  made  under  irregular  or  erroneous  judgment,  not  affected  by 

reversal  of  such,  for  mere  irregularity,  G3. 
otherwise,  if  for  want  of  jurisdiction,  Go. 
such  sales  void  al  initio,  G3. 
reason  thereof,  G3. 

policy  of  law  as  to  irregularities,  G4. 
rule  in  Indiana,  G5,  G7,  GS. 
Ohio,  GG. 
KATURE  OF  JUDICIAL  SALES,  Ch.  i,  3-24. 
I.  Of  Judicial  Sales  in  General,  3-17. 
judicial  act  one  done  pendente  lite,  1. 
so  a  judicial  sale,  one  mtxCiC  pendente  lite,  1. 
it  is  a  sale  in  court,  and  the  court  the  vendor,  1. 
may  be  made  by  master,  commissioner,  or  other  funclionaiy,  2. 
not  valid  until  confirmed,  2,  12. 
effect  of  confirmation,  2. 
officer  conducting  sale  agent  of  the  court,  2. 
this  principle  illustrated,  3. 

dillerence  between  sheriff's  sale  and  judicial  sale,  4. 
illustration  of  this  difierence,  5. 

definition  of  judicial  sale  in  United  States  Supreme  Court,  G. 
the  case  discussed,  G,  7. 

discretionary  forms  may  be  dispensed  with,  8. 
Init  otherwise  as  to  statutory  ones,  8. 
administrator's  sale,  in  North  Carolina,  0. 

in  California,  10. 

in  Pennsylvania,  12. 
judicial  sales  transactions  between  court  and  purchaser,  11. 
chancery  sales,  nature  of,  12,  n.  G. 
sale  to  be  reported  to  court  for  confirmaiion,  13. 
and  pureliase  incomiilete  until  confirmed,  13. 


iia)EX.  395 

NATURE  OF  JUDICIAL  ^XLT.S  — Continued. 

and  loss  by  fire,   bctv.'ccu    purchase  and    confirmation,   falls    on 

A'cndor,  13. 
manner  of  sale  in  discretion  of  court,  14. 
and  may  be  public  or  private,  14. 
distinction  between  judicial  and  execution  sales,  lo,  17,  18,  19,  20, 

21,  23,  23. 
sale  unconfiyned,  if  purchaser  receives  possession,  may  be  ratified 

by  lapse  of  time,  15. 
not  the  sale  of  the  ofiiccr,  but,  -vvhen  confirmed,  the  sale  of  the 

court,  15. 
illustration  of  this  principle,  IG. 

no  appeal,  generally,  lies  except  from  judicial  acts,  24. 
application  of  this  rule  to  judicial  sales,  24. 
decree  of  sale   and   confirmation  may  be   reviewed   in   appellate 

court,  25. 
illustration  pf  this  principle,  25. 
no  appeal  from  execution  sale,  as  such,  2G. 
can  only  be  questioned  in  direct  proceeding,  20. 
exception,  20. 

cases  in  which  judicial  sales  occur,  20. 
eli'ect  of  sale  under  statute  requiring  confirmation,  20,  27. 
this  subject  discussed,  20,  27. 

decree  of  sale  in  partition  virtually  vests  possession  in  court,  29. 
judicial  sales  properly  in  proreedings  wholly  or  partly  in  rem,  30. 
execution   sales   properly  in  proceedings  wholly  or  partly  in  x>cr- 

sonnm,  30. 
decree  in  judicial  sales  always  in  rem,  31. 
II.  Judicial  S.vles  ix  Puoceedings  Purely  Ix  Rem,  17-22. 
definition  of  proceedings  purely  in  rem,  32. 
purchaser's  title,  33. 
this  subject  discussed,  33,  34,  35, 
proceedings  in  rem  in  probate,  30. 

paramount  right  of  courts  extends  to  creditors  and  heirs  only,  37. 
foundation  of  this  right,  38. 
Pennsylvania  doctrine,  39. 
Illinois  doctrine,  40. 
practice  in  Illinois,  40. 
III.  Judicial  Sales   in   Proceedings   Partly  In  Rem  and  Partly 

In  Personam,  22-24. 
definition  of  proceedings  partly  in  rem  and  partly  in  pf,rsonam,  41. 
procedure  in  such  cases,  41. 
decree  in  such  cases,  partly  in  rem,  42. 

so  much  of,  as  relates  to  redemption  in  2)crsonam,  42. 
defendant  brought  in  by  publication,  43. 
case  discussed,  44. 
judicial  sale,  where  made  by  sherifi'  under  special  directions,  45. 


306  INDEX. 

NOTICE  OF  SALE  AND  RETURN  ON  EXECUTION,  Ch.  xvi,  213, 214. 

dependence  of  purchaser,  588. 

ri,!j:hts  of  purchaser  as  affected  bj-,  589. 

sale  without  notice,  590. 

effect  of  return,  591. 
TRIORITY  OF  DEEDS,  812-832. 
PUBLICATION,  defendant  brouglit  in  by,  43. 

PURCHASES   BY  PERSONS  CONCERNED  IN  SELLING,  Ch.  viii, 
134-141. 

policy  of  law  forbids,  346. 

if  seller  desires  to  purchase,  should  apply  to  court  for  leave,  340,  So.". 

a  matter  of  discretion  with  court,  340. 

illustration,  317,  348. 

executor  or  trustee,  whether  he  may  buj',  348. 

cllect  of  purchase  in  such  case,  in  some  states,  349. 

in  others,  350,  351. 

as  to  resale  in  such  case,  352. 

no  diilVrence  whether  jjurchase  is  made  directly  or  indirectly,  353. 

illustration,  353. 

purchase  by  administrator,  354. 

sale  under  license  from  foreign  court,  35G. 
REDEMPTION,  Ch.  xx,  304-316. 

I.  The  Right  op  Redemption,  304-306. 

exists  only  by  statute,  906. 

depends  upon  statute,  906. 

lex  loci  governs,  907,  908. 

extends,  generally,  to  debtor,  907. 
to  judgment  creditors,  909. 
and  mortgage  creditors,  909. 

right  of  redemption  may  be  constituted  by  agreement,  910. 

independent  of  statutory  right,  910. 

will  be  enforced,  910. 

nature  of  legal  right,  911. 

rulings  of  court  as  to,  912. 

Illinois  rules,  912. 

sales  on  foreclosure,  912. 

sales  on,  without  right  of  redemption,  erroneous,  912. 

judgment  debtor  may  redeem  any  one  of  several  parcels,  913. 

separate  redemption,  913. 

founded  on  requirement  of  separate  sales,  914. 
II.  By  the  Execution  Debtor,  306,  307. 

purchase  under  agreement  for  redemption,  915. 

effect  of,  915. 

enforced  in  equitj',  when,  916. 

interest  payable  in  such  case,  917. 

time  may  be  extended  b}'  parol,  917. 


1 


INDEX.  39 T 

REDEMPTION  —  Contimied. 

cflect  of  receiviu.jT  part  of  redemption  money,  918. 

Minnt'sotii — execution   debtor  may  redeem   without   paying   oUier 

liens  of  execution  purcliaser,  919. 
contra  in  California,  920. 
judgment  debtor  may  redeem  tliough  he  has  conveyed  his  righ'  U- 

land.  921. 
so  may  grantee,  921. 
reason,  921. 

riglit  of  judgment  debtor  not  affected  by  subsequent  sale,  922. 
sale  on  junior  judgment,  922. 
riglit  of  judgment  debtor  to  redeem  in  equity,  in  case  of  fra7  I, 

collusion,  or  concealment,  923. 
limitation  as  to  time,  923. 
III.  By  Judgment  Creditoks,  308,  309. 
riglit  to  redeem,  how  applied,  924. 
remedy  of,  after  death  of  execution  debtor,  925,  92G. 
judgment  creditor  purchasing  certificate  of  sale,  927. 
assignee  of  judgment  creditor,  927. 
Illinois  rule  as  to  sale  by  debtor  of  equity  of  redemption  wh  n 

purchaser  of,  fails  to  redeem,  928. 
abandonment  by  sale  under  junior  execution,  929. 
manner  of  redemption  in  master's  sale,  930. 
IV.  By  Mortgage  Creditor,  309-311. 
California  rule,  931. 
Iowa  rule,  931. 

junior  mortgagee,  931,  932,  933. 
accounting,  manner  of,  932. 
no  strict  tender  necessary,  933. 
readiness  to  redeem  sufficient,  934. 
Iowa  code  of  1851,  935. 
partial  redemption  not  allowed,  93G. 
nor  of  undivided  share,  936. 
redemption  from  mortgagee  as  purchaser,  937. 
Y.  How  AND  When  to  ee  Made,  311-314. 
only  by  a  legal  tender,  938. 
officer  not  bound  to  receive  substitutes  lor,  938. 
in  some  cases  held  that  he  cannot,  938. 
this  rule  modified,  939. 
time  of  redemption,  how  calculated,  940. 
statutorj'^  provisions  as  to,  govern,  941. 
"any  time"  before  close  of  last  day  alloAved  by  law,  941. 
"business  hours"  not  regarded,  941. 
redemption  by  unauthorized  person  assuming  to  be  agect,  valid,  if 

ratified,  942. 
strict  compliance  with  statute  necessary,  943. 
unless  waived,  943. 


398  INDEX. 

UE'DE^IFTIO'S  — Continued. 

stiitiUory  right  cannot  be  extended  by  act  of  party  claiming  right,  91-i. 

discretion  of  court  to  extend  statutory  period,  945. 

separate  redemption,  94G. 

Illinois  rule  as  to  redemption  by  judgment  creditor,  1)47. 

payment  to  be  accompanied  by  delivery  of  execution  on  judgment 

to  officer,  947. 
redemption  money  may  be  paid  to  sherift"  or  purchaser  in  Illinois,  94S. 
Alabama  rule  as  to  payment  on  purchase  by  trustee,  949. 
depreciated  currency  received   by  sheritf  as  purchase  money  no 

ground  for  tender  of  same  in  redemption,  950. 
redemption  where  prior  lien  has  been  paid  by  purchaser  at  sale,  951. 
oversight,  neglect,  or  ignorance,  no  ground  for  relief  in  equity,  952. 
Kew  York  rule  as  to  hour  and  place  of  redemption,  953. 
reason  of  this  rule,  954. 
VI.  Effect  op  Redemption,  814-316. 

restores  property  to  original  condition,  955. 

confers  no  new  rights,  955. 

liability  of  property  after,  955. 

redemption  by  assignee  of  right  to  redeem,  effect  of,  950. 

of  land  sold  in  part  satisfaction  of  judgment,  957,  958,  959. 

judgment  creditor  redeeming  substituted  to  execution  purchaser's 

rights  only,  9G0. 
disability/  caused  hij  war,  9G1. 

rights  of  judgment  debtor  where  no  negligence  is  shown,  9G1. 
remedy  the  court  will  give,  nature  and  extent  of,  9G1. 
RETURN  OF  PURCHASE  MONEY,  Ch.  xii,  177, 178. 

purchaser  at  judicial  sale  has  no  claim  for  relief,  except  for  fraud 

or  mistake,  487. 
Ohio  rule  that  such  payment  is  no  charge  on  land,  488. 
Virginia  rule  as  to,  489,  490. 
Tennessee  rule  that  money  may  be  recovered  before  convcyanoe 

made,  491. 
Mississippi  rule  allows  failure  of  consideration  to  be  shown,  492. 
Maine,  as  to  action  against  guardian,  493. 
ISALE,  THE,  In  ExEctmoN  Sales  of  Personal  Propehty,  Ch.  x-xiii, 

333-343. 
I.  By  wuoii  TO  be  Made,  333-335. 
by  the  sheriff  or  legally  constituted  deputies*,  1022,  1025. 
if  not  disqualified  by  interest,  1024,  1028. 
coroner  acts  in  such  cases,  1035. 
auctioneer  or  crier  may  be  employed  if  under  direction  and  in 

presence  of  officer,  103G. 
when  writ  is  directed  to  sheriff  personally  he  alone  can  sell,  1027. 
Bhcriff,  after  expiration  of  term,  may  sell  on  levy  legally  made 

during  term  of  office,  1029,  1030. 


INDEX.  309 

KEDEMPTIOIS"  —  Contin  iicd. 

ir.  IIow  TO  BE  jMade,  8o.j-;]38. 

at  time  and  place  appointed  in  notice,  unless  adjourned,  1031. 

Avlien  void,  if  made  before  hour  appointed,  1031. 

during  business  hours,  1033. 

if  otlierwise,  sale  is  void,  1033. 

void  in  Illinois,  if  made  before  appointed  day,  1033. 

personal  propertj'-  sold  must  be  on  view,  1033,  103.J. 

at  public  auction  to  highest  bidder,  103G. 

must  be  for  money,  103G. 

officer's  discretion  as  to  adjournment,  1037. 

effect  of  postponement  by  plaintiff's  order,  1033. 

sale  by  consent,  1039. 

effect  of  debtor's  silence  at  illegal  sale,  1010. 

duty  of  officer  as  to  manner  of  selling,  1041. 

such  discretion  as  prudent  person  would  exercise,  1041. 

payment  by  purchaser  who  is  execution  creditor,  1043. 

conflict  as  to  distribution  of  money  when  sale  is  on  more  than  one 
writ,  1043. 

valuation  law,  sales  where  there  is  a,  1044,  1045. 

law  in  force  when  contract  was  made  governs,  1047. 
III.  Its  Effect;  What  Passes  by  It,  338-340. 

if  amount  of  judgment  is  realized,  judgment  is  satisfied,  and  thereby 
vacated,  1048. 

how  to  be  revived,  if  ever,  1048. 

"execution  executed,  the  end  of  the  law,"  104'). 

payment  to  plaintiff  satisfies  writ,  1050. 

sheriff  cannot  pay  from  his  own  funds  and  hold  writ  as  security, 
1050. 

payment,  by  whomsoever  made  extinguishes  writ,  1050. 

what  interest  purchaser  takes,  1051. 

in  sale  on  execution  against  tenant  in  common,  1053,  1053. 

levy  of  second  execution  on  crops  sown  after  levy  of  first,  1051. 

distinction  between  sale  of  property  and  sale  of  interest  of  debtor 
in,  1055. 

right  of  purchaser  of  growing  grain  to  enter  and  take  away,  105G. 
IV.  Void  and  Voidable  Sales,  341. 

void  if  based  on  satisfied  judgment,  1057. 

as  to  knowledge  of  purchaser,  1058. 

estoppel  of  defendant,  1058. 

under  color  of  authority,  1050. 

Louisiana  rule  as  to  appraisement,  1000. 
V.  Who  jiay  not  r.tn-,  341-343. 

seller  may  not,  1061. 

illustrative  case,  10G3. 

purchase  by  deputy,  10G3. 

illegal  appraisement,  10G5. 


400  INDEX. 

REDEMPTIOX  —  Continued. 

YI.  "When  the  Officer  may  Re-seix,  343. 

for  uou-coiupliance  with  terms,  106G. 

first  purchaser's  liability  for  deficiency,  1667. 
BALE,  THE,  In  Execution  Sales  op  Real  Property,  Ch.  xvii,  21o-2C0. 
I.  By  Whom  to  be  Made,  215-217. 

by  sheriff  or  deputy,  if  -writ  is  not  to  sheriff  personally,  592. 

general  rule  as  to  sheriff  acting  by  deputy,  593. 

shcrifl'  cannot  sell,  when,  594. 

marshal's  sales  after  removal  from  office,  595,  59G,  597,  598. 
II.  How  TO  BE  Made,  217-227.  . 

public  auction,  599. 

"monc}^  in  hand,"  599. 

highest  unconditional  bidder,  599. 

sale  by  lots  with  suitable  identity,  GOO. 

en  masse  will  be  set  aside  when,  GOl. 

entirety  susceptible  of  division,  601. 

subdivision  by  debtor  after  levy,  G02. 

separate  interests,  G03. 

amount  to  be  sold,  604,  605,  GOG. 

conditional  bids,  607 

terms  to  be  fixed  by  officer,  607. 

adjournment,  608,  609. 

order  of  enforcement  of  executions,  610. 

Indiana  law  as  to,  611. 

bid  by  letter,  612. 

publicity  of  bids,  612. 

Illinois  rule  as  to  sales  en  masse,  613,  614. 

procedure  where  parcels  cannot  be  sold  separately,  615,  616. 

Minnesota  statutory  provision  in,  617. 

Wisconsin,  618. 

California,  619. 

Indiana,  620,  624,  C28. 

Tennessee,  G21. 

delivery  of  deed  on  sale  en  masse  may  be  prevented  by  injunction, 

sales  on  several  executions  at  once,  623. 

nature  of  judgment  lien  on  real  estate,  629. 

eflect  of  conveyance  by  debtor  subject  to  judgment  liens,  630. 

deed  delivered  and  destroyed  before  recording,  631. 

sale  on  credit  by  mutual  consent,  632,  633. 

on  additional  executions  without  notice,  634. 

basis  of  return  certificate  and  sale,  635. 

execution  against  sevaral  co-defendants,  exhaustion  of  property,  C3G. 

presumption  of  law  as  to  manner  of  sale,  637. 


INDilX. 


4.01 


SALI-:,  THE  — Continued. 

III.  Wno  May  kot  Buy,  227. 
seller  may  not,  038. 
modification,  039. 

IV.  IiiKEGULAR  Sales,  227-230. 

effect  of  mere  irregularities,  040. 

requisites  of  valid  sale,  041. 

as  to  levy,  041-043. 

on  executions  oa  judgments  which  arc  liens  on  land,  G42, 

047,  053. 

in  attachment,  044. 

in  ordinary  proceedings,  04,1. 

lien  of,  040. 

as  fixing  power  of  officer,  054. 

general  duty  of  officer  as  to,  055. 

execution  on  dormant  judgment,  050. 

voidable  and  not  void,  050. 

presumption  as  to  regularity,  057. 

inhibition  of  statute,  058. 

clerical  error,  059. 

directory  statutes,  GOO. 

omission  of  formal  inquiries  by  ofiicer  selling,  001. 

on  two  executions,  one  valid,  and  one  void,  sale  sustained,  CGI. 

contra  in  Indiana,  001. 

on  alias  writ,  002. 

variance  as  to  amount  in  deed,  002-005. 

as  to  dates,  003,  004. 

immateriality  as  to  dates,  004. 

irregularity  as  affecting  purchaser  witli  notice,  GOO. 

V.  Sales  Made  after  Death  of  ExECtmox  Defexuant,  237-240. 

no  execution  after  death,  at  common  law,  607. 

until  revived  by  scire  facias,  007. 

effect  of  sale  without  revival,  007. 

weight  of  authority  that  it  is  void,  007. 

statutory  changes  as  to,  007. 

Illinois  statute,  008. 

executor  to  have  notice,  OGS. 

no  issuance  on  dormant  judgments,  009. 

to  be  revived  by  scire  facias  after  seven  years,  070. 

death  of  judgment  plaintiff",  procedure  after,  071. 

levy  before  dsath  not  affected,  072. 

Iowa  statute,  presumption  of,  073. 

Supreme  Court  of  United  States,  ruling  of,  074. 

valuation  law,  sale  under  after  death  of  execution  defendant,  075. 

VI.  Sales  when  there  is  a  Valuation  Law,  240-240. 

as  respects  execution  to  be  made  in  accordance  with  law  at  date 

of  contract,  070. 

20 


'102  LN'DEX. 

SALE,  TIIE  —  Contiiuicd. 

bid  to  be  received,  G77. 

valid  appraisemeut,  677. 

Iowa,  sale  without  appraisement  in,  void,  (378. 

effect  of  want  of,  679. 
result  of  disregard  of  generally,  680. 
rule  of  Supreme  Court  U.  S.  681. 
appraisement  a  part  of  contract,  683. 
exception,  683. 
when  not  necessary,  683. 
Indiana,  sale  in,  -vvitliout,  684. 
sheriff's  return  as  to,  685. 

when  law  at  date  of  rendition  of  judgment  governs,  686. 
lien  of  levy,  687. 

when  sale  may  be  made  without  valuation,  688. 
sale  on  void  expo.  689. 
death  of  defendant  before  issuance  of,  690. 
consent  of  defendant  to  waiver  of,  691. 
Iowa,  disqualification  of  appraiser,  693. 
policy  of  law  upholds  sales,  690. 
requirements  of  statute,  693. 
provisions  of  act  of  Congress  as  to,  69-1. 
rule  governing  U.  S.  Courts,  695. 
remedy  after  judgment,  696. 
language  of  Supreme  Court,  697. 
VII.  Execution  Creditor  as  Purchaser,  246-248. 
whether  he  is  chargeable  with  irregularities,  698. 
Indiana  rule  as  to  when  judgment  is  reversed,  699. 
"Wisconsin  rule,  699. 
Illinois  rule,  699. 

protection  of,  as  bona  fide  purchaser,  700-700. 
Iowa  rule  as  to  what  constitutes,  704. 
YIII.  Sales  made  after  Return  Day  ov  Execution,  248. 
if  levy  is  before  sale  may  be  after,  705. 
immaterial  when  return  is  made,  706. 
effect  of  return,  707. 
IX.  Sales  to  Third  Pkusons,  Bon.v  Fide  Puucjiaskus,  249. 
estate  of,  707. 
doctrine  as  to,  707. 
extent  of,  708. 
SALE  OF  LANDS  IX  PROBATE  FOR  PAYMENT  OF  DEBTS,  Ch. 
vi,  91-120. 
I.  What  Lands  may  ee  Sold,  91-95. 
in  general  only  of  such  lands  as  and  interests  whereof  the  debtor 

dies  seized,  222. 
based  on  statute,  222. 


INDI'IX, 


4013 


SALE,  Till:  — Continued. 

" head  right  certificates"  in  Texas,  223. 

lands  purchased  in  name  of  widow  and  heirs  under  prc-cmptiou 

right,  enured  to  decedent  in  his  life-time,  224. 
this  rule  discussed,  225. 
Tennessee  rule,  220. 
Alabama  rule,  227,  229,  230. 
Massachusetts  rule,  228. 
power  to  subject  decedent's  lands  to  payment  of  debts,  remedial, 

231,  232. 
but  claims  must  be  in  conformity  to  statute,  233. 
duty  of  executor  or  administrator,  234,  235. 
II.  What  Debts  Lands  may  be  Sold  to  Pay,  95-07. 
debts  owed  at  time  of  death,  23G. 
and  legp.Uy,  230. 

lands  not  liable  for  costs  created  by  administrator,  237. 
nor  against  administrator  or  estate,  238. 
but  sucli  may  be  paid  if  there  is  a  surplus,  238. 
this  principle  illustrated,  239,  240. 

"claimants  must  prove  tliemselves  creditors  of  decedent,"  241. 
"debt  due  from  testator,"  242. 
individual  lands  liable  for  partnership  debts  when,  243,  244 

III.  Who  may  Conduct  the  Sale,  97,  98. 
by  executor  or  administrator,  24G. 
stranger  or  sheriff  cannot,  240. 

nor  special  administrator,  240,  247. 

special  administrator,  powers  of  in  Iowa,  247. 

sale  under  legislative  order,  248. 

as  to  sale  by  one  of  several  executors  or  administrators,  249. 

IV.  Application  to  Sell;   How,  and  in  Wuat  Time  to  be  M.vde, 

98-119. 
application  to  sell;  must  be  made  by  executor  or  administrator  250. 
exception,  in  Texas,  251. 
one  or  more  of  several  may  apply,  252. 
statute  of  Icwa  as  to  executors,  253. 
application  must  be  timely,  254. 
one  year  a  suitable  time,  255. 
circumstances  of  case  determine,  255. 

order  of  sale,  if  after  unreasonable  length  of  time  void,  25G. 
three  years  in  New  York,  257. 
application,  what  it  must  show,  258. 
more  than  one  order,  if  first  insufficient,  259. 
debts  must  first  be  allowed,  259. 

allowance  nunc  pro  time,  259. 
must  be  by  petition,  200. 
allegations  of,  260,  262,  279. 
subject  matter,  conformity  to,  261-28-4. 


40-^  INDEX. 

SALE,  TIIE  —  Coniinued. 

procedure  in  Tennessee,  263. 

in  Mississippi,  2G4. 
jurisdiction,  liow  vested,  265. 
eflect  of  decree  after  jurisdiction  lias  attaclied,  26.j,  209,  270,  271, 

272,  273. 
statute,  conformity  to,  266,  275. 

notice,  conformity  to  must  appear  affirmatively,  207,  268,  and  n. 
want  of  service  and  appearance,  eflect  in  chancery  proceedings,  27i. 
guardian  ad  litem,  ellcct  of  appointment  of  in  chancery  proceedings 

in  Ohio,  274. 
in  probate,  274. 
general  rules,  276. 

time  of  presentation  of  petition,  277. 
docketing  and  continuance,  278. 
when  new  notice  requisite,  278. 
New  Hampshire  rule,  280. 
Mississippi  rule,  281. 
Texas  rule,  282. 

court  may  prescribe  rules  and  terms  of  sale,  283. 
Illinois  rule,  285. 

confirmation  of  sale  by  court,  effect  of,  280. 
duty  of  purchaser,  287. 
what  will  avoid  sale,  288. 
in  Indiana,  289. 

presumptions  in  favor  of  legality  of  jirocccding,  290. 
illustration  of,  291,  292. 
infancy  of  heirs,  293. 

procedure  after  destruction  of  records,  294. 
lime  in  which  to  commence  proceedings,  204. 
in  New  York,  295. 
V.  Within  what  Time  S.\le  is  to  be  ;M.aj)e  and  Perfected  by 

Deed,  119,  120. 
general  rule,  one  year,  200. 
Michigan  case,  296. 
analogy  to  statute  of  limitations,  297. 
chancery  not  restricted  by  probate  rule,  297. 
this  principle  illustrated,  298. 
VI.  Not  After  Repeal  of  the  Law,  or  Abolitiox  of  xue  Court 

Allowing  the  Order,  120,  121. 
power  ceases  in  toto  with  abolition  of  court,  299. 
or  abolition  of  law,  300. 
if  there  be  no  saving  clause,  300. 
so,  if  made  under  supposed  law,  301. 
illustrative  cases,  302,  304. 
VII.  The  Oath,  121, 123. 
when  to  be  taken,  305. 


INDEX. 


405 


SALE,  THE  — Continued. 

should  be  first  step,  305. 
cllcct  when  law  as  to,  is  directory,  SOG. 

when  no  allegation  as  to,  and  jurisdiction  has  altaclicd,  presump- 
tion that  oath  was  properly  taken,  306. 
when  allegation  of  taking  of  oath  is  by  statute  required,  307. 
VIII.  Sales    Meiiely   Irregulak,   or  ix   Irregui.ar    Proceedings, 
NOT  Void,  132,  123. 
mere  irregularity,  if  no  want  of  jurisdiction,  will  not  avoid  sale,  SC^. 
nor  can  regularity  of  appointment  of  administrator  be  raised  in 

collateral  proceeding,  309. 
may  not  be  impeached  after  reported  to  court  for  mere  irregularity, 

310. 
this  question  discussed,  310. 
IX.  Confirmation— The  Deed— Its  ArPROVAi.,  123. 
confirmation  before  deed,  311. 
differences  in  practice,  311. 
death  of  administrator,  312. 
duty  of  successor,  312. 
SETTING  EXECUTION  SALE  ASIDE,  Ch.  xix,  389-303. 
I.  Power  of  the  Court  to  Set  Sale  Aside,  289,  290. 
has  full  power  when,  850. 
and  to  order  re-sale,  850. 
or  award  execution  anew,  850. 
this  principle  illustrated,  851. 
Application  to  set  aside,  hoAv  to  bo  made,  852. 
must  be  within  reasonable  time,  852. 

if  made  by  motion,  within  time  allowed  by  law  for  redemption,  853. 
always  before  intervention  of  riglits  of  third  persons,  853. 
and  before  barred  by  lapse  of  time,  853. 
II.  For  Inadequacy  of  Price,  290-292. 

ordinarily  not  alone  sufficient,  if  sale  in  other  respects  is  unexcep- 
tionable, 854. 
and  purchase  is  bona  fide,  854. 
but  otherwise  when,  855. 
not  proper  chance  for  competition,  85G. 
information  withheld,  857. 
sale  on  execution  for  less  than  debt,  858. 
confusion  in  bidding,  859. 
conditional  bids,  859. 

prevention  of  competition  by  purchaser,  800. 
who  may  seek  to  set  aside  for,  8G1. 
III.  For  Misconduct  op  the  Officer  Selling,  292,  293. 
power  of  the  court,  8G2. 
ofiicer's  duty  as  to  subdividing,  8G3. 
illustration,  8G3. 


•i-OC  I^"DEX. 

SETTING  EXECUTION  Sx^LE  ASlDi:  — Continued. 
IV.  For  Mistake,  Ireegtjlarity,  or  Fralt),  293-301. 
general  rule,  864. 
sales  in  mass,  86-3. 
right  of  election  of  defendant,  80G. 

excess  in  amount  raised  by  sale  wlierc  land  could  be  subdivided,  SG7. 
if  deed  is  executed  by  deputj',  868. 
manner  of  execution,  SCO. 

aggregate  sale  of  parcels  will  be  set  aside,  870,  873. 
even  tliougli  price  is  adequate,  870. 
reasons  for  this  rule,  870. 
court  will  enjoin  delivery  of  deed,  871,  89-1. 
lands  in  which  defendant  has  no  interest,  872,  880. 
exception,  in  some  states,  as  to  sale  in  mass,  873. 
prevention  of  bidding  by  purchaser,  874. 
mistake  as  to  property  sold,  875. 
sale  of  trust  estate,  876. 

efl'ect  of  subsequent  fraud  or  irregularitj',  877. 
rule  in  Illinois  as  to  fraud  or  irregularity,  878. 
effect  of  misdescription,  879. 
bid  not  publicly  announced,  881. 
rule  in  Indiana  as  to  manner,  882. 
sale  under  several  writs,  one  of  whicli  is  void,  883. 

two  writs,  one  of  wliicli  is  subject  to  appraisement  law, 
884. 
different  rule  in  Wisconsin,  885. 

cxecuticm  creditor  purchased  when  description  is  defective,  880. 
mode  of  procedure,  886. 

sale  without  notice,  on  bond  of  indemnity  given  by  ]nirchascr,  837. 
right  of  indorser  to  have  sale  set  aside,  888. 
Iowa  rule  as  to  notice,  889. 
ajjplication  of,  890. 
excessive  levy,  891. 
attorney  of  plaintiff  purchaser,  891. 
effect  of  violation  of  this  rule,  892. 
rule  in  Wisconsin  as  to  sale  en  masse,  893. 
equity  rule  as  to  avoidance  for  uncertainty,  89G. 
as  to  irregularity,  897. 
V.  For  Reversal  of  JuDOirENT,  301,  302. 
general  rule,  898,  899. 

where  purchaser  is  owner  of  judgment,  898. 
or  plaintiff  in  execution,  898. 
or  beneficiary,  898. 

or  purchase  is  made  by  agent  or  attorney  of  either,  899. 
contra,  where  purchaser  is  innocent  third  person,  900. 
and  a  bona  fide  purchaser,  900. 
general  rule  illustrated,  901. 


INDEX.  407 

SETTING  EXECUTION  SALE  ASIDE  — Continued. 
VI.  RETDiiN  OF  Purchase  jMoney,  302,  303. 

no  claim  where  sale  is  void  against  plaintiff  in  execution,  902. 
or  execution  debtor  bad  no  interest  in  property,  903. 
and  can  maintain  no  suit  either  in  law  or  equity  against  plaintifl',  902. 
nor  at  law  against  debtor,  903. 
but  may  in  equity,  903. 

purchaser  has  no  right  of  subrogation  as  to  execution  plaintiff,  904. 
reason,  904. 

where  sale  passes  no  title,  905. 
SETTING  ASIDE  JUDICIAL   SALE,  Ch.  x,  152-103. 
I.  The  Power  to  Set  Aside  Sales,  152-154. 
courts  of  equity  have  general  supervision  over  sale.^,  394  and  n.  1. 
procedure  is  by  petition  or  motion,  394. 
or  by  the  court  itself,  394. 

may  reject,  set  aside,  confirm,  or  order  rc-sale  at  discretion,  394,  39G. 
grounds  for  setting  aside,  395. 
II.  For  Iivadequ.vcy  op  Price,  154r-15G. 

inadequacy,  if  only  cause,  must  bo  such  as  to  raise  presumption  of 

fraud,  397. 
if,  in  addition,  any  circumstance  is  shown  tending  to  cause  it,  sab- 
will  be  set  aside,  398,  399. 

illustrative  cases,  399,  400. 

parties  alleging  fraud  must  show  their  own  innocence,  401. 
unforeseen  circumstances  coupled  with  inadequacy,  403. 
III.  For  Irregularity,  15G-158. 

in  order  or  decree,  403. 

insufficiency  of  description  and  inadequacy  of  price  combined,  404. 

irregularity  after  appeal,  405. 

misunderstanding  resulting  in  inadequacy  of  pvice,  400. 

if  made  by  master  not  named  in  order,  407. 

on  bill  of  review,  when,  408. 

sale  made  at  improper  time,  409. 

but  not  after  confirmation  and  distribution  of  proceeds,  generall}-,  410. 

mortgage  sale  for  less  than  debt,  if  inadequate  price,  411. 

different  day  from  that  stated  in  notice  of  sale,  413. 

if  purchase  is  by  person  conducting  sale,  without  leave  of  court,  413. 

or  by  trustee,  or  on  his  behalf,  414. 

in  Illinois  for  defect  in  petition  for  leave  to  sell,  415. 

when  mortgagor  is  unable  to  attend  and  mortgagee  purchases  for 
greatly  inadequate  price,  41G. 

for  negligence  or  mistake  in  officer  selling,  417. 

sale  made  on  irregular  application,  418. 

second  sale,  419. 

Bale  on  mortgage  made  by  guardian,  when,  420. 


-lOS  INDEX. 

SETTIXG  ASIDE  JUDICIAL  SXL'E  — Continued. 
IV.  Fon  Mistake  axd  Misappkeiiexsiox,  158. 

misapprcliension  caused  by  purchaser  or  person  intereslcd  in  sale, 

421. 
■where  auctioneer  does  not  liear  highest  bid,  421. 
neglect  or  misapprehension  of  guardian,  431. 
re-sale  by  court's  own  motion,  421. 
V.  For  SunrnrsE,  158, 159. 

will  be  set  aside  when  injury  or  unfair  advantage  results,  423. 
when  assurances  of  postponement  are  made  to  debtor,  and  sale  is 

for  grossly  inadequate  price,  433. 
will  not  be  set  aside  because  of  anything  which  due  care  might 
prevent,  434. 
VI.  FoK  Fraud,  159.  IGO. 
general  principle,  435. 
when  avoided  on  application,  42G. 
fraud  shown  after  confirmation,  427. 
purchase  by  seller,  438. 
or  by  agent,  428. 
or  by  attorney,  439. 
if  price  is  grossly  inadequate,  430. 
illustrative  cases,  430. 
A"II.  For  Reversal  op  the  Decree  op  Sale,  IGl. 
general  rule,  431. 

sale  must  be   fully  completed  by  confirmation,  conveyance,  and 
paj^ment,  431. 
VIII.  Re-Sale,  1G1-1G3. 

will  be  ordered  when  sale  is  set  aside  for  ordinary  cause,  433. 

not,  when  cause  is  want  of  jurisdiction,  433. 

first  purchaser  held  for  difference  in  price  between  first  and  second 

sale  when,  433.. 
Maryland  rule,  v,'hon  sale  is  partly  on  credit  and  deferred  paj-mcnla 

are  not  made,  434. 
or  court  may  compel  payment,  under  its  general  chancery  powers, 

434. 
New  York  rule  where  parties  in  interest  cannot  agree,  435. 
sale  in  different  order  from  that  requested  by  debtor,  43G. 
inclement  weather,  when  good  cause  for,  437. 
when  interests  of  minors  are  affected,  438. 
in  discretion  of  court  to  order,  before  confirmation,  439. 
petition  to  reopen,  4.40. 

advanced  bid  necessary  to  pjocurc  order  for,  441. 
SPECIAL  ADMINISTRATOR,  power  of,  247. 
STATUTE  OF  FRAUDS,  execution  sales  within,  Gl,  G2. 
STATUTORY  REQUIREMENTS,  must  be  fully  complied  with,  5. 
SUBROGATION,  201. 


iM)i:x.  400 

TIME  OF  REDEMPTION,  how  calculated,  040. 
UNDIVIDED  INTEREST,  sale  on  execution  of,  549,  ")0. 
VALUxVTION  LAAVS,  98. 
VOID  EXECUTION  SALES,  Ch.  xvii,  249-2G0. 

wlicre  jurisdiclion  is  ^va^Liul^,  709,  740. 

process  issued  ou  void  judgment,  710. 

forged  execution,  710. 

cnjoiucd  execution,  710. 

execution  issued  without  revivor  after  death  of  defendant,  710,  7:14, 
73G. 

"where  one  writ  is  valid  and  others  void,  711. 

3Iissouri,  sale  on  altered  or  amended  execution  i;i,  71  "J. 

levy  void  for  uncertainty,  713. 

identity  of  land  sold  must  he  shown,  714,  747. 

unassigncd  right  of  dower,  71o. 

'■tract  containing"  void  for  uncertainty,  71G. 

variance  between  judgment  and  execution,  717,  7:V2. 

when  officer's  power  has  ceased,  718. 
as  to  U.  S.  marshals,  719. 

sale  after  satisfaction  of  judgment,  7'20,  724,  728. 

after  judgment  is  in  part  satisfied  to  bona  fide  purchaser,  721. 

eflect  of  sale  to  bona  fide  purchasers,  722. 

sale  after  arrest  and  discharge  of  debtor,  723. 

Illinois,  sale  made  prior  to  date  in  notice,  729. 

Missouri,  sale  of  entirety  witliout  regard  to  subdivision,  730. 

Kentuclcy,  sale  of  more  than  sufficient  to  satisfy  execution,  731. 

sale  on  proceeding  in  rem,  733. 

sale  of  portion  of  mortgaged  land,  737. 

imscaled  writ,  738. 

under  order  of  U.  S.  Court,  739. 

effect  of  irregularity,  741. 
in  Pennsylvania,  742. 
acknowledgement  in  open  couit,  743. 

judgment  in  personam,  744. 

purchase  with  fraudulent  intent,  74.j. 

character  of  parties,  execution   and  judgment    must   coincide    a.s 
to,  74G. 

.sale  of  decedent's  lands  on  judgment  against  executor,  748. 

execution  dated  after  death  of  one  of  co-defendants,  749. 

by  bidding  or  prevention  of  competition,  700. 
VOID  JUDICIAL  SALES,  Ch.  xii,  174-177. 

sales  void  for  want  of  jurisdiction,  474. 

abolition  of  court  making  the  order,  47j. 

repeal  of  law  under  which  sale  is  made,  47-j. 

for  imrcasonablc  delaj^,  47G. 

after  lapse  of  statutory  period,  47G. 


410  INDEX. 

VOID  JUDICIAL  ^MSE.^  — Continued. 

sale  of  lands  not  included  in  decree,  477,  480. 

administrator's  sale  for  costs  and  expenses,  478. 

sale  on  notice  different  from  that  ordered  in  decree,  478, 

Iowa  rule  as  to  guardian's  sales,  479. 

defective  record,  481. 

application  of  proceeds,  483. 

sale  on  void  decree,  483,  484. 

in  Mississippi,  484. 

in  Indiana,  485,  48G. 
AVAERANTY,  Ch.  xi,  1G7,  168. 
none  in  judicial  sales,  458. 
or  in  equitable  sales  under  order  of  court,  458. 
or  in  sales  to  enforce  statutory  liens,  458. 
officer  executing  conveyance  a  mere  agent,  458. 
his  warranty  binds  him  only,  458. 

WRIT  OF  EXECUTION,  Ch.  xvi,  208-210. 

cannot  be  impeached  collaterally  if  judgment  is  valid,  564, 

good  till  superseded,  5G4. 

if  judgment  is  void  execution  is  void,  564. 

on  dormant  judgment,  5G5. 

division  of  county  after  teste  of  writ,  565. 

death  of  joint  defendant,  5GG. 

proper  procedure  to  revive  judgment,  5GG. 

Mississippi  rule  as  to,  567. 

Tennessee  rule  as  to,  568. 

Illinois  rule  as  to,  569. 

Massachusetts  rule  as  to,  574. 

must  conform  to  judgment,  570. 

execution  for  costs  Avithout  judgment,  571. 

variance  between  writ  and  judgment,  572. 

clerical  variance,  572. 

Indiana  rule  as  to  seal  of  process,  573. 

priority  of  executions,  575. 
WRIT,  THE,   In  Execution  S.u-es  of  Peiisox.\l  I'koi'ekty,  CJi.  xxi, 
317-327. 
I.  The  Writ,  317-319. 

process  "by  fieri  facias,  962. 

nature  of,  9G3. 

origin  of,  964. 

practice  in  United  States,  965. 

must  substantially  conform  to  judgment,  9G0,  970. 

slight  variance  will  not  vitiate  the  writ,  9G7. 

procedure  where  property  is  not  found,  968. 

in  Ala])ama  after  death  of  defendant,  969. 

after  death  of  one  co-defendant,  970. 


INDEX.  -Ill 

WRIT,  TUE  — Continued. 

exception  on  suggestion  of  death,  970. 
alteration  of  execution  avoids,  971,  972. 
case  in  point,  972. 
II.  Its  Lien,  319-321. 

at  common  law,  from  date,  973. 

by  statute  in  England,  974. 

in  the  United  States,  975,  97G. 

lien  of  original  execution  kept  alive  by  issue  oC  alias  or  j^lurics,  977. 

Kentucky  rule,  that  death  of  defendant  abates  execution,  but  does 

not  discharge  levy,  978. 
Illinois  rule  that  lien  is  fixed  bj^  date  of  delivery  to  ollicer,  979. 
but  death  of  defendant  before  deliver}-  of  execution  to  ollicer  abates 

it,  979. 
III.  What  may  be  Sold,  322-327. 

at  common  law  in  England,  980,  981. 

property  in  hands  of  receiver  or  in  custody  of  court  not  .subject  to 

levy,  982. 
proper  practice  in  such  case,  983,  987. 

generally  all  moveables,  not  exempt  by  sdilr.te,  subject  to  levy,  9?L 
choses  in  action,  98o. 

shares  in  corpoi'atious  and  joint  stock  companies,  98."i. 
mortgagee's  rights  to  personal  property,  98j. 
growing  grain  and  crops  of  annual  planting,  98.1. 
"annual  productions,"  985,  98G. 
interest  of  one  tenant  in  common,  9S7. 
procedure  in  such  case,  987. 
right  which  passes,  987. 
interest  of  partner,  in  jS'ew  Yor!<,  988. 
procedure  in  such  case,  988. 
non-resident  partners,  988. 

equitable  interest  cannot  be  sold  at  common  law,  980. 
such  the  Mississippi  rule,  989. 

interest  of  mortgagor  in  possession  before  for!eitiire  may,  089. 
sale  of  shares,  what  sufficient  description,  990. 
manuscripts  subject  to  co'pyri(jld  may  be  levied  and  sold,  991. 
but  officer  cannot  use  them  or  ]iublisli,  991. 
right  of  redemption  in  Iowa  of  land  in  trur,t  deed,  092. 
procedure,  992. 
judgment,  in  Iowa,  992. 

what  is  personal  property  subject  to  levy,  993. 
Kentucky  rule  as  to  sales,  994,  995. 
officer  cannot  sell  for  his  fees  after  judgment  Is  ."r^ali.sficd,  99G. 


► 


b 


LAW  LIHKARY 

UNIVERSITY  OF  CALIFORNIA 

LOS  ANGELES 


A     000  670  974     5 


■w*^ 


4|i,       uiu   n     ggS 


mi  mi~ 


#- 


SLli':— " 


